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THE 



REPUBLIC OF REPUBLIC 


OR 


AMERICAN FEDERAL LIBERTY. 



By B. J. SAGE 


H 


(P. C. CENTZ, Barrister.) 


FIFTH EDITION. 


% “ It [/. e., the republic of republics] is an assemblage of societies that constitute a new < : 
capable of increasing by new associations.” — Montesquieu. 

“ They will form together a federal republic.” “ The sovereignty of each membe 
preserved,” though there is “ constraint on the exercise of it, in virtue of voluntary eng; 
monts.” — Vat tel. 

See page 332 of this volume; also page 42 et seq. 


NEW YORK 


THE 



GOULD PUBLISHING HOUSE ' 


PUBLISHERS 








u K 323 

S3 


Copyright , 1881 . 

By Edward Avery 


8y Transfer 
D. C. Public Library 
3 i9 3s 












WITHDRAWN 




PREFACE. 



'HE theory of this work is precisely that upon which the 


A anti-slavery sentiment of the country based itself, in op- 

• *ng the extension of slavery, the fugitive slave law, and, 
:ed, slavery itself; while it supports the action (except nulli- 

• r yn g), of those states which have from time to time defended 
the nselves against federal excesses. 

he author is one who never held or wished for office; who 

* : -ngs to no party; and who pleads to save the palladium of 
r his blessings — his commonwealth. 

a 1865, Andrew Johnson, filled with the motives and feelings 
/he war, and surrounded by detectives, spies, Stantons, and 
Holts, believed Davis to be a traitor, who sought the destruction 
of “ the government,” starved federal prisoners at Andersonville 
and elsewhere, and procured Lincoln’s death. 

It was then that he uttered the celebrated threat of “ making 
treason odious by hanging traitors ” ; and for a time, even if it' 
-was not contemplated, it was feared that a military commission 
would be used as the machinery of trial and punishment. But, 
as Davis and the other leading confederates were prisoners of 
war, and protected by the jus gentium, the policy seemed to be 
adopted of turning them over to the civil authorities, for trial 

— if conviction could be assured ; or for other disposal, as here¬ 
after indicated. 

The North was full of bitterness and vengeful spirit. Senti¬ 
ments like the following, were heard from many leaders : “ Re¬ 
bels have no rights but to be hung ”; “ The army has convicted 

— only execution remains.” But the soberer judgment of pre- 



1Y 


PREFACE. 


dominant men was more humane, and the moral sense of the 
country and the world favored a trial of some sort, though few 
comparatively could patiently contemplate the chances of ac¬ 
quittal. The following from the New York Times shows the 
prevailing views and feelings, and, at the same time, the danger 
of losing the great principles involved. Advocating civil trial, 
and presuming it would come, that journal said: “ We hjive no 
fear that Jeff Davis will be acquitted on the merits of the case, 
as they will be expounded by the chief justice, who will try 
him. ... If Davis is convicted, the constitution, as understood 
by the loyal people of the land, will be vindicated, and the su¬ 
premacy-of the national authority forever established in law, as 
well as fact.” 

Presuming that there must be a large class of Sewards, Chases, 
Greeleys, Gerrit Smiths, Bateses, Everetts, Trumbulls, Stans- 
berrys, etc., who, as peace grew older and reflection came, would 
arise and influence public opinion, the author sent from London, 
in the summer of 1865, the first edition of this work, in the 
shape of a “ protest ” against the trial of the confederate chiefs 
by military commission; and an argument — which was really 
that of the fathers, the author merely compiling — showing that 
the law and the testimony were in their favor, and that they 
could not be convicted even by a court and jury. It was sent 
to all the conspicuous men in and out of the administration. 

The following telegram to the Philadelphia Ledger , is selected 
to show the estimate in which the work was held by some in 
Washington: “ A most important argument has been received 
by the president from London, in which are set forth the reasons 
why Davis cannot be convicted in any court, of the crime of 
treason,” etc., etc. Concerning it, Mr. Charles O’Conor wrote the 
author, Dec. 10, 1865 : “ If upon the numerous points that any 
lawyer can readily see in the case, I had so admirably prepared 
and overwhelmingly conclusive a brief as the protest, my task 
[of defending Davis] would be slight indeed.” And the Mobile 
Register noticed it as follows : “ This treatise is an extraordinary 
work, considering that it is written by an English lawyer. It 
exhibits profound acquaintance with the history and philosophy 
of the constitution.” 


PREFACE. y 

It should be explained, en passant, that the work purported 
to be the monograph of P. C. Centz, Barrister. 

Some have thought, perhaps erroneously, that the president 
and his advisers were, by it, induced to pause, and convoke lead¬ 
ing jurisconsults; who actually met, and after much study and 
thought, reported that Davis must be civilly tried if at all; but 
that probably he could not be convicted. Among the state¬ 
ments on this subject, the following is selected from a most in¬ 
teresting letter, written in Richmond to the Norfolk Virginian, 
and published in 1873 : — 

“ Another event of great historical interest, in which Judge 
Clifford participated, was the solemn consultation of a small 
number of the ablest lawyers of the North, at Washington, a few 
months after the war, upon the momentous question as to whether 
the federal government should commence a criminal prosecution 
against Jefferson Davis for his participation and leadership in 
the war of secession. In this council, which was surrounded at 
the time with the utmost secrecy, and which has never yet been 
described, was U. S. attorney-general Speed, Judge Clifford, 
William M. Evarts, and perhaps half a dozen others, who had 
been selected from the whole northern profession for their legal 
ability and acumen ; and the result of their deliberation was the 
sudden abandonment [of the idea of prosecution], in view of 
the insurmountable difficulties in the way of getting a final con¬ 
viction, which were revealed by their patient study of the law 
bearing upon the case.” 

Notwithstanding the “ sudden abandonment ”in secret, change 
of intention was not allowed to transpire; and the defence were - 
compelled to keep in readiness until 1869. During all this pen¬ 
dency of the case. President Johnson and his cabinet seemed to 
evade a trial by jury, but meanwhile to aim at getting the states’ 
supreme court to lay down a national law of treason, so as to 
have a national control, by a national government, of national 
citizens, under the penalties of national treason; thus establish¬ 
ing that “ absolute supremacy,” of “ the government ” over alle- 
giant states and citizens, which the Philadelphia convention of 
1866 anticipatorily declared. Henry J. Raymond, the writer of 
the expression quoted above from the New York Times , was the 
writer of the address of the said convention. 



VI 


PREFACE. 


In a letter from Mr. O’Conor to the author in London at the 
close of 1865, is the following: “ To procure a forensic discus¬ 
sion of the point so ably argued by you, and a pre-arranged 
judicial determination of it by the supreme court, against the 
South, and in favor of his national government, has long been a 
favorite project with Mr. Johnson. He is persistently urged to 
it by his most intimate adviser; and it is distinctly avowed in 
the message just delivered. For a long time, those who possess 
means of knowing the intent of the president and his cabinet, 
have, almost without exception, asserted very positively, that 
Mr. Davis would be tried in a civil tribunal.” 

In the course of time, Mr. Davis was turned over by the mil¬ 
itary to the civil authority; and, finally, under a habeas corpus, 
admitted to bail, with Horace Greeley, Gerrit Smith, and others 
as bondsmen, early in 1867 ; and thenceforward a show of desire 
and readiness to try was kept up; insomuch that Mr. O’Conor 
did not abate his preparedness till the fall of 1868 ; when, on a 
motion to quash the indictment, the judges differed, and the 
case was certified up to the states’ supreme tribunal, where it 
was finally extinguished by President Johnson’s amnesty pro¬ 
clamation, without any laying down (or prostrating ?) of the law 
by the said tribunal. 

To some, the prosecution seemed aiming to get around trial 
by jury, and before the supreme court, in order to merge the 
case in the aforesaid “ pre-arranged ” decision ; but the author 
opines with diffidence, that Seward and Chase secretly man¬ 
aged to prevent that predetermined decree, which necessarily 
and fatally impugned statehood; they, if we judge from their 
history and declarations, being nothing if not devotees of the 
sovereignty of the American states. 

These great men knew that commonwealths (Hew York and 
Ohio for example) were integrally the citizens thereof, and that 
the fealty of the citizens was the life of the state ; and that a 
national law of treason on national citizens, was absolute de¬ 
struction of what they themselves called “ indestructible states.” 
Hence it is presumable that they were opposed to the above- 
mentioned design of the president. 

The adverse sentiment was aided more or less by a large class 


PREFACE. 


vii 

of northern, minds, who steadily opposed, not merely the mili¬ 
tary commission, but any trial. Conspicuous among them were 
Gerrit Smith, Horace Greeley, and ex-governor John A. Andrew 
— the latter expressing himself as follows, as is stated in the 
letter to the Norfolk Virginian , before mentioned : “ It cannot 
be done. The criminal law has no application here. . . . When 
a whole people commit an act, rash, impolitic, and direful though 
it may be, . . . it is impossible to consider the criminal law as 
being framed to meet the case.” Like Edmund Burke, these 
men “ knew of no way to frame an indictment of a whole 
people.” 

Meanwhile, time was healing hurts, assuaging sorrows, mollify¬ 
ing resentments, wearing away antipathies and prejudices ; and 
forgiveness and conciliation were copiously welling up from the 
bottom of the people’s hearts, so that finally, in 1868, Mr. 
Davis’s condemnation, once an easy task, became no longer pos¬ 
sible ; and the case, as heretofore stated, came to a happy end. 

What a change ! Underwood, a year or two before, had said 
to a committee of congress, in reply to an inquiry if a jury 
could be packed — “ It would be difficult, but it could be done. 
I could pack a jury to convict. I know very earnest, ardent 
union men in Virginia.” Such sentiments did not, however, 
long or widely prevail; and in December 1868, the New York 
Tribune doubted if it was ever possible to convict Davis, “ un¬ 
less the jury had been packed,” and “ every democrat excluded.” 
Peace, with benign wings, was brooding oVer the land. 

Providence, time, the better feelings of men, their sober sec¬ 
ond thoughts, and a myriad of moral forces, ever co-work to pre¬ 
serve these glorious commonwealths ; and they now stand in 
serene and silent majesty, observed of every eye, and invoking 
the loyalty of every heart. Seward and Chase both, after the 
war, with emphasis proclaimed the states to be “ free,” “ stub¬ 
born,” “ indestructible.” Their life is independent; above “ gov¬ 
ernment ”; and they will not “ down ” at the bidding of 
murderous usurpation, for their being is that of the people ; and 
the self-defence of both — the first law of nature — is identical- 
Perverters should cease to “ wreck themselves against necessity,” 
for, as long as freedom is a part of God’s smile on this continent, 


PREFACE. 


viii 

the state will be the political form of the people. Bryant’s 
apostrophe to liberty applies to the commonwealth : —- 

“ . . . Power at thee has launched his bolts, 

And with his lightnings smitten thee: 

They could not quench the life thou hast from heaven.' 

THE MODE AND TESTIMONY OF THE WORK. 

Before concluding, it may be well to say that, wishing for 
criticism and correction of error, the author makes no apology 
for the manner of performing his task; but takes occasion to 
say, that, desiring everybody to read and believe, he has aimed 
to use simple, direct, and untechnical language, intelligible to all 
classes, and to pile up evidences on every contention of the 
book, so as to make doubt impossible. Chapter VII. of Part I., 
for example, decisively proves what all the fathers considered, 
and the people intended, our polity to be. And for such proofs, 
the statements of the deputies who devised, and the people 
who ordained it, are used, rather than the dicta of the admin¬ 
istering agents, who became interested alike in its success and in 
their own further emoluments, and who began those assumptions 
of ungranted powers, which have since well-nigh proved fatal. 

And upon this matter, it is well further to state, that as the 
great inquiry is one of fact, much care is taken to select the 
best testimony. After the federal system went into effect, party 
spirit, the desire of office, and the possession and use of public 
power and money (so perverting to the judgment and lowering 
to the morals), made the administrators of the government tend 
to become unfit for witnesses; and it is deemed unjust to them¬ 
selves, as well as to the cause of institutional liberty, to use 
their statements. Indeed, if tested by interest, courts would 
reject them. Therefore the views of Hamilton, of Madison, and 
even of the great and good Washington, are not used, where 
they expressed them as officials, interested in the successful 
working of the great experiment. 

Henry, Martin, Lowndes, Yates, Lansing, et id omne genus , 
are rejected, because, as enemies, they appealed to the people’s 
fears, and denounced the system — not only making erroneous 
or over-stated objections, but yielding in no degree to decisive 


PREFACE. 


ix 


refutations, made by those who were in the convention of 1787, 
and knew the real intent of that body, as well as the meaning 
of the instrument. 

Jefferson is not cited because, being abroad, he did not parti¬ 
cipate in the making of the plan; and because, upon its being 
put in operation, he gradually became a heated partisan. The 
resolutions of ’98 and ’99” and Madison’s report, are dispensed 
with, because, instead of being the source of. state-rights doc¬ 
trines (as their devotees seem to suppose), they are simply de¬ 
ductions or corollaries from the state-rights facts adduced herein, 
which cover the whole ground of (as well as precede and in¬ 
clude) the constitution itself. No use is made of the masterly 
arguments of those great men, Tucker, Taylor of Caroline, or 
Calhoun, as they are partisan, and furnish no apposite facts. 
Nor is the president, the congress, or the federal supreme court 
cited, since they can testify to nothing whatever to help us 
us to a vere dictum , on this pure question of fact. Their dicta 
cannot even dent or abrade an actuality, let alone destroy it. 
Nor can they give decisions on disputes as to political authority 
between the states and the federal agency of the states , a part of 
which agency the said functionaries are. Their jurisdiction can 
only be of questions “ under ” the constitution of the states, 
and cannot reach those affecting the political existence and sove¬ 
reignty of its makers, — such questions being most certainly 
above it — no matter whether the said makers are the people as 
a nation , or the people as states. 

In short, no facts or authorities are used in the book, origina¬ 
ting after the federal system was set in motion. The entire 
draught is from the head-spring — not a drop from the turbid 
river below ! But it is well to say here that current practice, 
continued usage, and fit and timely explanation (ever and 
precisely based on reality and truth, with construction of doubts 
always and inexorably in favor of original authority) must be 
allowed due weight in the exposition of our polity. 

THE SECOND CENTURY OF THE FEDERAL SYSTEM. 

We have now a full retrospect of our departed century, as to 
its results on our political institutions. Its lessons are imperious, 



X 


PREFACE. 


and if we fail to learn and utilize them, we may as well give up 
self-government, and cry out, as did the Hebrews, “ Give us a 
king,” to save ourselves from the war and woe of his inevitable 
coming. 

But in the opening of the new cycle — the second century of 
“ federal liberty ” 1 — we have some good auspices. Certain sub¬ 
jugated and degraded states have recovered that equality, vital 
to a voluntary union of republics ; and the head — alike of the 
federal agency and of the supposed centralists party (President 
Hayes) — declares that “ The American flag must wave over states 
and not over provinces ” ; which can only mean, that the great 
American revolution, from provinces to states, is not to be an¬ 
nulled ; that henceforth our union will be an association of equal 
commonwealths, governing themselves through agencies with 
entrusted powers ; that the means of enforcing said authority is 
“ the mild and salutary coercion of the magistracy ” [Federalist]; 
and that the soldiery is no more a part of the government, than 
the switch or ferule is a part of the parent or schoolmaster, but 
is an instrument of the civil power, to be used as a last resort. 

IN CONCLUSION, 

it is to be hoped that the American people will speedily come 
again to know and feel that they are, in form, and life, and ac¬ 
tion, an association of republics; and to recognize their duty of 
preserving their sacred heritage and trust of liberty against cen- 

1 This phrase was used by James Wilson, to express the liberty that free 
states enjoy under their league. “ The definition of civil liberty,” said he, “ is, 
briefly, that portion of natural liberty, which men resign to the government 
[i. e. to society], and which then produces more happiness than it would have 
produced if retained by the individuals who resign it ; — still, however, leaving 
to the human mind the full enjoyment of every principle that is not incompatible 
with the peace and order of society. Here I am easily led to the consideration 
of another species of liberty, which has not yet received a discriminating name, 
but which I will venture to term federal liberty. This, sir, consists, in the ag¬ 
gregate of the civil liberty which is surrendered [i. e. delegated] by each state to 
the national government [i. e. to the United States] ; and the same principles 
that operate in the establishment of a single society, with respect to the rights 
reserved or resigned by the individuals that compose it, will justly apply in the 
case of a confederation of distinct and independent states.” [See Connecticut 
Courant, Dec. 24, 1787.] 



PREFACE. 


XI 


tralization. The fundamental laws, which the states have sev¬ 
erally and federally established, seem once more to be in accord 
with the tones of the old bell which, on the 4th of July, 1776, 
“'proclaimed liberty throughout the land.” All patriotic hearts 
and hopes are in harmony, and our only political discords are 
the usurpations and excesses of those ephemeral creatures who 
My, for a measured while, with imparted strength, in the sun¬ 
shine of popular favor—creatures who, as subjects and chosen 
servants of the commonwealths, are sworn to keep within those 
written limits which they daily transcend. 

ADDENDUM FOR THE FIFTH EDITION. 

Senator George F. Edmunds, when the Fourth edition of this work 
was published by Little, Brown & Co., declared, in the North American 
Review, that “ the doctrines of the Republic of Republics are wholly un¬ 
founded. ” 

The doctrines,” as he called them, were the statements of George 
Washington, Alexander Hamilton, James Madison, Thomas Jefferson, 
and the architects of our system generally—“ a cloud of witnesses,” each 
outranking even Senator Edmunds ; the author’s humble task being to 
furnish thp logical string—so to speak—on which the precious pearls 
were strung, or rather to cover the whole ground of controversy With a 
mosaic of indestructible truths. And, if Senator E. had read even a 
page or two, anywhere, he would have seen that Washington and his 
compatriots were stating facts, which the people were establishing as 
organic law, and, in nowise, teaching theory or doctrine. 

No work was ever written, in which more care was taken to make it 
of truth, and to avoid giving the author’s dicta as to facts or opinions ; 
and citations were given for everything through all the text—each being 
a challenge ! Hence any intelligent American, turning to the authori¬ 
ties cited, on any and every page, will be amazed at the temerity of a 
statesman, who declares that the “ doctrines” of the book are “ wholly 
unfounded.” And if Senator E. had heeded the challenge, he would 
have avoided another gross error—that of saying, the doctrines of Mr. 
Centz apply to the federal system, and not to this—the averment being 
untrue in every particular ! 

Senator E.’s* mistakes in the Revieiv, are quoted and exposed in a 
reply, now printed in the appendix hereof, which, being then declined 
by the Review, was published by the Philadelphia Press, and other lead¬ 
ing journals. 

Another appendix is added, giving numerous high commendations of 
the book from the best minds of the country and age—the purpose being 
to show what consoles the author for Senator E.’s disfavor ; and to hint 
the need of hastening slowly, in reviewing a book not read, if the re¬ 
viewer wish to avoid ‘ • kicking against the pricks” of conscience on one 
side, and of impalement on the other. 

It remains to say that the purpose of the work is to show that the ac¬ 
tual Constitution is one of law and order and peace—all to be effectuated 
by magistracy, and that consolidation, coercion of States, nullification, 
and secession, are all hostile to it, and of revolutionary tendency. 


✓ 


CONTENTS. 


PART I. 

A GENERAL VIEW. 

CHAPTER I. — Introductory. Page 

The separateness of the states from their origin.3 

Each body must, if independent, be sovereign.3 

The constitution provides for a union of states.4 

It is a constitution of government by states.5 

It is a part of the machinery of self-government.5 

The federal government is not over the states.5 

The danger of giving it supreme power.6 

The character and purpose of suffrage.. 7 

Solemn warning from Edmund Burke. 7 

CHAPTER IL—Perversion. 

All political power inherent in the people.9 

The doctrine of the fathers...9 

The doctrine of the perverters.12 

The self-consolidation of the government.13 

Caesarism.13 

“ Let us have peace ”.14 

Will our peace be of contentment or force .14 

CHAPTER III. — History repeats itself. 

Perversion has made a spurious constitution.16 

Expounders using refuted charges as expositions.16 

Usurped control of suffrage.17 

The American “ divine right ”.18 

The imported theory of the social compact.. . 18 

A Roman chapter of American history.19 

CHAPTER IV. — Secession and Coercion. 

No constitutional coercion of states.23 

The only basis of coercion.23 

Secession is an act under the jus gentium .24 

Coercion is justifiable under the same law.25 

Our system as thus modified..25 

Two important ideas.26 































XIV 


CONTENTS. 


CHAPTER V. — Rebellion or not. 

Were the confederates rebels and traitors ?.28 

The federal compact vindicates them . .29 

Strong corroborations. 30 

Coercion of states is war against them.31 

The nation is states — governments are creatures.31 

Uncle Sam taught Davis and Lee secession.32 

CHAPTER VI. — Rebellion or not. (Continued.) 

Patriotism is love of one’s state.34 

The patriotism the fathers felt and taught.34 

Davis and Lee no traitors.36 

Absurd views of sovereignty.36 

States alone were responsible for secession and war.37 

And states alone were punishable.38 

The atonement was complete.39 

The jus gentium protected confederates.39 

The legitimate conclusions.40 

CHAPTER VII. — The Architects’ Idea of the Edifice. 

The perversion to be exposed.41 

The inquiry is one of fact.42 

Testimony of the writers of “ The Federalist ”.42 

The statements of Washington and Franklin.44 

The testimony of the five next in rank.45 

Another decade of witnesses .46 

Only a federation of sovereignties was possible. •... 48 

Professors of fact, as well as of law, wanted.49 

CHAPTER VIII. — The Subject is Facts. 

Interpretation comes after establishment.50 

So-called schools of interpretation .50 

The chief expounders.52 

The “ school ” was one of perversion.52 

“ School ” is a misnomer except in the sense of flock.63 

A passing tribute to the old Bay state.54 

Averments of fact — skeleton of argument.65 

1. The republic.65 

2. The republic of republics.56 

3. Citizenship and allegiance.66 

4. Treason.56 

True patriotism is fidelity to the commonwealth.67 

Government is mental and functional action.57 

The minds of the political bodies still live . . . . .57 

CHAPTER IX. — Conclusive Evidence. 

Webster’s statement in 1819.59 

The testimony of Massachusetts.60 

The object of government.60 

The social compact. 60 

No sovereignty in government — all functionaries agents .... 61 

The state can change government at will.61 

The state to remain sovereign over government.61 

New York testifies idem sonans .61 

Lordship of the soil, or eminent domain.62 

Federal sites.63 
















































CONTENTS. 


XV 


Summing up the testimony.. 

The constitution is law in a state by her will. 

Exposure of the fallacy of a new social compact. 

Politically the people exist and act as a state. 

The stumbling-block of the expounders. 

The sacred ties according to Washington. 

The sacred ties according to Jackson and Burke. 

The union is only voluntary engagements. 

“ Union and liberty, now and forever ”. 

Let us preserve the commonwealths. 

Let all declare the true principles of liberty. 

The states are now provincialised. 

Invocation. 


63 

64 

64 

65 

66 
66 
67 

67 

68 
68 
68 
69 
69 


PART II. 

FEDERALISATION. 

CHAPTER I. — The Actors — their Motives and Purposes. 


Statehood to remain intact.74 

The chief aims of the states.. 75 

The principal changes contemplated.76 

Preliminary remarks on federalisation.77 


CHAPTER II.—Massachusetts federalises herself. 

* The order and date of her ratification ; and her vote.79 

The substance of the objections.79 

Her statesmen denounce consolidation.80 

The severalty and the sovereignty of the states .82 

“ We the people ” means Massachusetts.82 

What her statesmen said “ we the people ” meant.83 

The fear of losing statehood. 85 

She proposes the tenth amendment.85 

The amendment a truism though useful.86 

The sole ordaining was by Massachusetts.88 

Her ratification.88 


CHAPTER III. — Connecticut federalises herself. 

The order and date of her ratification; and her vote.89 


What her statesmen said.89 

“ We the people ” means Connecticut.90 

Her ratification.90 


CHAPTER IV. —New York federalises herself. 

The order and date of her ratification ; and her vote.92 

What her statesmen thought of the system.92 

Ratification in confidence of amendments.94 

Decisive proof that “ we the people ” means New York.95 

Her ratification.95 

Her present autocratical declarations.96 











































XVI 


CONTENTS. 


CHAPTER V —New Jersey federalises herself. 

The order and date of her ratification; and her vote.97 

The views of her statesmen.97 

“ We the people ” of New Jersey.98 

Her ratification.99 

CHAPTER YI. — Pennsylvania federalises herself. 

The order and date of her ratification ; and her vote.100 

She associates as a sovereign.100 

Views of her statesmen. 100 

Whom did she mean by “ we the people ” ?.102 

Her ratification.103 

CHAPTER VII. — Delaware and Maryland federalise 
themselves. 

Delaware’s ratification ; order, date, and vote.104 

“ We the people ” of Delaware.104 

Her ratification. 104 

Maryland, her ratification; order, date, and vote.105 

“We the people ” of Maryland. 105 

Her ratification.106 

Luther Martin’s letter.106 


CHAPTER VIII. Virginia federalises herself. 

The order and date of her ratification; and her vote . . . ", . . 107 

Virginia to remain a sovereign. 107 

Consolidation denounced.109 

What Virginia meant by “ we the people ”.#111 

Her ratification.Ill 

Making assurance doubly sure.112 

The nation resuming powers delegated by Virginia.113 

CHAPTER IX. — South Carolina and Georgia federalise 
themselves. 

The order and date of South Carolina’s ratification; and her vote . 115 

The explanation of the system to her.. 115 

Views of the Pinckneys and Rutledges.115 

“ We the people” of South Carolina.119 

Her ratification.120 

The order and date of Georgia’s ratification; and her vote . . . 121 

Her ratification.121 

CHAPTER X.—New Hampshire federalises herself. 

The order and date of her ratification ; and her vote.122 

New Hampshire’s assertion of her statehood.122 

“We the people ” of New Hampshire.123 

Her ratification.123 

The nine and sufficient parties ratified the compact.124 

The federal system established and finished.125 

The convention unanimous in this view.125 

The congress of states takes the same view.126 

'Fhe putting of the agency at work ..125 

The view of congress as to the system being then completed . . .* 126 




































CONTENTS. xvii 


CHAPTER XI. — North Carolina federalises herself. 

Date of rejection of constitution; and vote.128 

The order and date of her ratification ; and her vote.128 

Her idea of the union expressed by Iredell and others.128 

The sovereign rejects the league.131 

The sovereign ratifies the league.131 

Her ratification.132 

Washington vs. Webster.132 


CHAPTER XII. — Rhode Island federalises herself. 

Her rejection of the compact by vote of her people.134 

The order and date of her ratification; and her vote.134 

Her ratification.134 

Washington’s view of the act.134 

Finis coronat opus .134 

The republic of republics .136 


CHAPTER XIII. — The “executed” “deed.” 

A fatal admission of Mr. Webster.137 

Now let us see the “ deed ” as “ executed ”.137 

The ratifying words of the “ deed ”.139 

The complete federal system.140 

Here then are the essentials of a federation.140 

Several important reflections.141 

There is no other history of establishment.141 

Gross pictorial deception.. . 142 

Exposure of the fallacy.143 

The more perfect union of 1788 . 144 

The identity of character of the two unions — diagram to face p. . 144 

Both systems federal unions.145 

The separate wills of states made both systems.145 

The later federation the more perfect. 145 


CHAPTER XIY. — The Testimony of the Constitution. 

“ What does it say of itself 1”.147 

The testimony of the title and preamble . ..147 

The “ deed ” names and recognizes the states.148 

All elections or powers are of states.. 149 

The federal government always vicarious.150 

All citizens and subjects are those of states.151 

The union was made to preserve the states.151 

The wills of states must live to amend.152 

The same states made both federal compacts.152 

The instrument says the states are the parties.153 

The “ executed ” “ deed ”.154 

The compact was done only by states.154 

No sign of other theory than federation.165 

Only a federation was possible.156 

11 They builded better than they knew ”.156 












































XV111 


CONTENTS. 


PAET III. 

FALLACIOUS EXPOSITION. 

CHAPTER I. — Charges and Expositions identical. 

Testimony of Washington, Hamilton and Madison.159 

Comparison of charges and expoundings.159 

1. The states made into one state.160 

2. The change from a federacy to a nation.160 

3. The general government a sovereignty.160 

4. The government the final judge of its authority ..... 160 

5. A state and a county equal in rights . . . ..161 

Opposition of Henry, Martin, Lowndes, et alii . ..161 

The federal simulacrum.162 

“ The Massachusetts school ” as the Sheik al Gebel.162 

Judge Story’s relation to these perversions.162 

Probable reasons for Judge Story’s error.164 

Were the motives worthy of the occasion ?.164 


CHAPTER II. — Who makes “supreme law”? 

Interpretation of the “ Massachusetts school ”.165 

“ What is our system 1 ” is matter of fact.166 

How the public convictions were produced.166 


INTERPRETATION No. 1.—The Nation ordained .... 167 

Ignoring, or concealing facts, does not destroy them.167 

Did not the people, as states, ordain ?.168 

The ordaining instruments.168 

The compact required the states to ordain.169 

The states retained their sovereignty.169 

No “people,” as such, were to ordain.170 


CHAPTER III. — False Evidence of establishment. 

INTERPRETATION No. 2. — The Constitution national . . 171 

Fallacies of the “ expounders ”.171 

The new system “ done ” only by states.172 


INTERPRETATION No. 3. — Story’s new Article .... 172 

Sheep follow' bell-wethers.173 

The blind leading the blind.173 


INTERPRETATION No. 4. — “The States not named” . . . 174 

Each state put her name in the compact.175 



























CONTENTS. 


X1S 


CHAPTER IV. — Some Samples OF “ SOPHISMES.” 

INTERPRETATION No. 5.— The Supreme Law clause . . 176 

The fathers’ idea of the “ supreme law ”.177 

Views of Hamilton, Iredell, Davie, Parsons, et alii .177 

Views of Madison, Hamilton, Randolph, Seward, Greeley, et alii . 178 
The expounders prove too much.178 

INTERPRETATION No. 6. — Partly federal and partly 

national. 178 

Testimony of the Federalist.178 

The states, in some matters, act as if a nation.179 

Madison’s views.. . . . 179 

The senate federal — the house national . 179 

Exposure of the gross fallacy.180 

INTERPRETATION No. 7. —“Reserved to”.181 

CHAPTER V. —Garblings. 

INTERPRETATION No. 8. — Garbling the ratifications . . .182 

Deceptive quotations.182 

The true versions.183 

What was the motive of these garblings 1 .184 

INTERPRETATION No. 9. —Garbling the Federalist . . . 185 

Justice Story’s effort.185 

An effort of Mr. Webster’s in this line.185 

Testimony of the Federalist; sophistry of the expounders . . . 186 

CHAPTER VI. — Adroit Substitutions. 

INTERPRETATION No. 10. — Changing terms and meanings 188 

Perversions of Everett and Curtis.188-9 

“ Irrevocable conveyances ” of sovereignty.190 

“ Delegate,” then, is the only correct word.191 

Further criticism on Mr. Curtis’s views.192 

The people never part with self-rule.194 

Apposite quotation from Noah Webster.195 

CHAPTER VII. — Misstating History and Records. 

INTERPRETATION No. 11. — Misstating the Views and 

Acts of the Convention.196 

Reasons for making a new federation.196 

The “ mosaic dispensation ” of centralism.197 

The misstatement to be refuted, and the refutation.197. 

How the states instructed their deputies.198 

The expounders’ style of quoting.199 

The “ national ” idea repudiated.200 

More anti-national facts.200 

The real preamble.201 

The real “ government ” is “ the United States ”.202 

Anti-national contemporaneous exposition.203 

































XX 


CONTENTS. 


CHAPTER VIII. — Webster’s Masterpiece of Criticism. 

INTERPRETATION No. 12—“ Constitutional Compact.” . . 204 

“ Compact ” and “ accede ” are correct.204 

Webster ignored constitutional history.205 

Neither he nor Calhoun stated the facts of the case.207 

Both must have assumed their premises.207 

Webster’s views later in life.207 

Attempts at explanation.208 

Mr. Webster’s real views.209 

He defines compact, confederation, and league.211 

Why was he on both sides ?.211 

CHAPTER IX.—Lincoln’s plain English. 

Consequences of the “ expounders’ ” interpretations.213 

Lincoln’s views and teachers.214 

Justice to Mr. Lincoln.214 

States and counties politically equal.215 

Sovereignty, if not asserted, is lost.216 

“ The union created the states ”.217 

The states became subject to their own union . ..218 

Seeing things upside down.219 

The worship of the idol “ union ”.219 

The reasons for the perversions.220 

Eternal vigilance is the price of liberty.220 

CHAPTER X. — Washington’s political faith. 

Political views of Washington — extracts.. 222-230 

CHAPTER XI. — Washington’s political faith. (Continued.) 

Further extracts from his writings.231 et seq. 

Extracts from his farewell address. 234 et seq. 

Washington’s adoption of Wilson’s views.237 

His adoption of the views of “Fabius ” (John Dickinson) .... 238 
His adoption of those of the Federalist, Hamilton, and others . . 239 

Comments on his political opinions.241 

His statement of the objects of government ..241 

CHAPTER XII. — Verbal Jugglery. 

Perversion of Noah Webster’s definitions.242 

Strategic exposition.242 

The American “ Old Man of the Mountain ”.243 

Noah Webster’s real doctrines. 243 et seq. 

The states above constitutions of government.244 

The aim is to preserve the states complete.244 

Electees and agents.245 

A compact and a constitution.245 

Noah Webster never changed.246 

The “adroit substitutions ” in Webster’s dictionary ..246 

1. Sovereignty.247 

2. “ State,” “commonwealth,” and “republic” . . ..247 

3. “ Compact ” and “ constitution ” .248 

4. “ Delegation ” and “ delegate ”.249 

5. “ Union ” and “ e pluribus unum ”.250 

6. “Federal,” “federalise,” “confederation”.251 












































CONTENTS. xxi 

7. “ Congress’’.251 

The sum of Noah Webster’s views.252 

The untruths ascribed to him.252 

Pro tanto the book is not Noah Webster’s.253 

Contemporanea expositio . 253 

Treason to the people and to freedom.254 

CHAPTER XIII. — Conservative Errors. 

1. As to “ a republican form of government ”.255 

The sovereign wills survived federation.256 

“Form ” and soul are both meant.256 

Self-preservation the duty of a state.257 

Voting in some states is a mere simulacrum of liberty.258 

The guaranty is really one of sovereignty.258 

2. As to the fourteenth party to the compact.259 

The real fourteenth party, if any.266 

3. As to nullification.260 

South Carolina and the proclamation of force.260 

A cardinal error and a plain distinction.261 

The “ plain distinction ”.262 

4. As to “ The Lost Principle ”.263 

“ Barbarossa’s theory ”.263 

Webster and Curtis have the same idea.263 

5. As to “ the consent of the governed ”.264 

6. As to “ the will of the majority rules”.264 

7. As to “ the charter of our liberties”.265 

8. As to social compact, constitution, bill of rights.266 

9. As to the growth and development theory.266 

10. As to secession.267 

Why ignore nature and righteousness ? .268 

The late secessions unjustifiable.268 

Some of the lessons this “ Part ” conveys.269 


PART IV. 

SOVEREIGNTY IN THE UNITED STATES. 

CHAPTER I. — The Genesis of a State. 

The whole subject is one of facts.274 

The states themselves are the government.274 

The states are so many republics.275 

The case exemplified by Pennsylvania.275 

The origin of Pennsjdvania.276 

William Penn’s political views — note.276 

The first step of making the province a state.276 

The state or nation completed.278 

Her absoluteness of existence and sovereignty.279 

CHAPTER II.—The Republican Social Compact. 

Object of society.281 

The social compact of Pennsylvania.281 

Contemporaneous expositions.282 













































xxii CONTENTS. 

Decisive testimony of Massachusetts.282 

Sovereignty vs. government.283 

The rationale of our social compact.283 

Authorities. 284 

Government is mental and functional.285 

Constituting the general government was functional ...... 285 

A clear conception of the states.286 

Divine right.286 

CHAPTER III. — Social Compact Fallacies. 

The expounders on the social compact .288 

Story, Webster, and Curtis —society vs. government.288 

A misstatement exposed; the real government.289 

Vagaries of the political pulpit as to secession.290 

Specimens of expounding on this subject.290 

Declaration of John Quincy Adams.290 

Professor Jameson’s hotchpotch.291 

Hume and expounders on the social compact.291 

The state rules in all things.292 

The germ of the republic.292 

The society called Pennsylvania.292 

The polity is self-government of societies.292 

Did the American provinces revolutionize in vain ?.293 

CHAPTER IV. — Societies are Sovereign. 

What our political history and philosophy teach — five propositions 294 

Grades of authority — illustrated.294 

An amusing mistake.295 

The people govern the people.296 

The people as sovereign states and as subjects — demonstration . 297 

A further illustration, showing perversion.297 

Views of publicists idem sonans with this work.298 

The states subjugated, if this theory do not prevail.298 

“ National sovereignty ” no better.299 

“ The government ” claims to be paramount.300 

The substance of the preamble and article VII.300 

Societies of people unquestionably ratified.300 

Experimentum crucis — illustration.300 

Complete corroborations.302 

A complete summing up by James Wilson.303 

CHAPTER V. — Sovereignty One and Indivisible. 

Sovereignty vs. powers.305 

Imagine Kaiser William’s authority divided.305 

What say the publicists ?. 306 

Rights and powers are not sovereignty.306 

Sovereignty is not qualifiable or limitable.307 

Only one sovereignty over persons and things — two illustrations 308, 309 

Sovereignty’s delegations — illustration, facing p.310 

Corollaries.310 

References to conclusive authorities.311 > 312 

CHAPTER VI.—Erroneous Views of Sovereignty. 

How the masses are misled. 313 

The teaching that the states are mere counties.313 

Defences changed to means of attack. 314 

“ The states are sovereign, except,” &c.; exposure of the error . . 314 















































CONTENTS. xxiii 


Stephens, Webster, Pendleton, Greeley, Draper, and others . 314, 315 

Delegating is irrevocably granting—exposure of the sophism . . 316 

Arguing from false words.317 

The fathers never held such dogmas.317 

Politicians, like sheep, follow a bell.318 

Hon. A. H. Stephens and others on sovereignty.319 

Extended quotation of Mr. Stephens’ views.320 

Remarks on the same.321 

Sovereign American citizens.322 

Squatter sovereignty.322 

Only in organisation have the people sovereignty.322 

The fallacy of a distinguished professor.323 

Some decisive definitions. 323, 324 

CHAPTER VII. — The United States are Sovereigns yet. 

States are the sovereign parties to the compact.325 

The people, as states, have always amended.325 

The first twelve amendments.326 

Adoption by separate states.326 

The later amendments.327 

When and how did a state lose sovereignty ?. 328 et seq. 

Admissions of Everett, J. Q. Adams and Webster, and others . . 330 

Sophists always stultify themselves.331 

The political philosophers — their views.332 

Issues of fact tendered.332 

“ Free, sovereign, and independent ” — what the phrase means . . 333 

The states not under the control of the government.333 

But “ change ” by usurpation threatens us.334 

CHAPTER VIII. — The States act as Sovereigns in the Union. 

New York’s record on the subject.335 

New York now sovereign.337 

What say Jay, Hamilton, and Livingston ?.337 

She now claims sovereignty over people and soil.£38 

Uncle Sam stands in New York only on her grant.339 

New York on the lordship of the soil.339 

Chancellor Kent states the American doctrine.340 

The conditions federal foothold is granted on.340 

New York then is absolute on her soil.341 

CHAPTER IX. — Other Sovereigns like New York. 

Queen Massachusetts speaks idem sonans .342 

The voice of Pennsylvania on the subject.343 

Old Virginia acted in the same way.344 

The understanding of South Carolina.344 

So say the new states.346 

CHAPTER X. — Sovereignty in the New States. 

The origin of new states.348 

Men constitute a state.348 

Man’s right of self-rule is the basis.348 

The rationale of our system.349 

Remarks of Montesquieu — note.349 

Distinctness of the first new states.349 

Their different forms of polity.350 

Separateness in religious faith.350 

The myth of nationality.351 

The new states of latter days.352 














































XXIV 


CONTENTS. 


States are societies based on the heart.• 352 

How men become new states, and these sovereign.353 

The status and rights of a settler.353 

Whence comes the new state’s sovereignty ? 353 

Reasons for the view expressed.354 

CHAPTER XI. — The ultimate Arbiter. 

The natural and inherent right of defence is in society.355 

No federal capacity, or duty, for direct local defence.355 

Who is to judge of broken conditions and forfeitures ?.356 

The pact itself agrees with the philosophy here set forth .... 357 

The expounders virtually admit the theory hereof.358 

The guaranty of all the states is to preserve each.359 

Expressio unius est exclusio alterius .360 

“ The government ” can enter states only by express law .... 360 

“ The government ” has no right to hold the states.360 

Its doing so reduces the states to counties.361 

CHAPTER XII. — The true Character of the Government. 

It is tripartite, or three institutions — illustrative diagram .... 362 

Unheeded form of consolidation the worst. 363 et seq. 

The government cannot be a grantee — the reasons why .... 363 

A misleading misnomer.365 

Let us symbolise the polity.365 

CHAPTER XIII. — Facts must prevail. 

Let those who devised, describe the polity.367 

Statements of Hamilton, Madison, Washington, and others . . . 367 

The sons contradict the above statements ..368 

The subject is exclusively one of fact.368 

Construction or interpretation has here no place.369 

The question Americans cannot evade.369 

A hint to England and the American provinces.369 


- 


PART V. 

CITIZENSHIP, ALLEGIANCE, AND TREASON IN THE 

UNITED STATES. 

CHAPTER I. — The People are sovereign states. 

Statement of fundamental principles .373 

1. The people are the states.373 

2. Loss of statehood feared and forefended.373 

3. Federal usurpations to be treated as nullities.373 

4. The federal agency not to coerce states.373 

5. Self-defence of states against said agency unlimited .... 373 

6. The citizen’s defence of his state cannot be treason .... 373 

The states are the people and polity .374 

Corroborative views of Webster, Curtis, and James Wilson . . . 374 































CONTENTS. 


XXV 


CHAPTER II. — Federal Usurpation to be feared and opposed. 

Views of Ames, Pendleton, and others against consolidation . . . 376 

Carefully guarding against consolidation.377 

Massachusetts originated the tenth amendment.377 

This amendment a mere truism.377 

The grand result of the movement . . .378 

Amendment X. alone shows the states to be fully sovereign . . . 379 
The real meaning of Amendment X. — note.379 


CHAPTER III. — Usurpations to be treated as nullities. 

Views of Hamilton, Parsons, and Iredell.380 

Views of Massachusetts and Connecticut.380 

Views of Presidents Jefferson, Jackson, and Johnson.381 


CHAPTER IV. — No federal Coercion of States. 

The states in no wise subject to the constitution.382 

What say the fathers on federal coercion ?.. 383 

The fathers aimed to avoid coercing states.385 

Even judicial coercion of states not intended.385 

Massachusetts again in the lead.386 

The grand result she led to.387 

Perjured usurpation and treason.387 


CHAPTER V. — Self-defence of States. 

The testimony of the states themselves.388 

What the fathers say on self-defence of states.388 

The ancient faith of Massachusetts.391 

Similar treason from Virginia.392 

Hamilton’s testimony.392 

The last reasoning of the states on the subject.393 


CHAPTER VI. — True Loyalty is Fidelity to the State. 

To defend the state is duty and not treason.394 

Corollaries.394 

1. The primary objects of a citizen’s devotion are in his state . 394 

2. Citizens are the integers of a state, and owe it allegiance . . 394 

3. The citizens are the soldiery, and the state is to control it . 394 

4. Defending the state with arms is collective self-defence . . 394 

5. Citizens cannot commit treason by defending the state . . . 394 

6 . The compact regards the state as the object of treason . . . 394 

A few explanatory remarks. 394 

The state is the sole object of patriotism.395 

Expression of the sentiment by the fathers.395 


CHAPTER VII. — American Citizenship and Allegiance. 

The federal constitution on citizenship.397 

False naturalization.398 

Let the states testify on citizenship.399 

Effect of amendment XIV. on citizenship—note.400 

Testimony of the states on allegiance.400 

Allegiance as to Davis and Lee.402 

































xxvi 


CONTENTS. 


CHAPTER VIII. — The State is absolute over the Soldiery. 

What does Massachusetts say 1 .403 

What her fundamental law declares.404 

Her political action in the union.405 

Her Hartford-conventionism.406 

CHAPTER IX. —Defending One’s State is Self-defence. 

The state is the citizens thereof.408 

It contains all powers of government.408 

Defending one’s state is not treason.409 

The federal compact changed neither states nor citizens .... 410 

No change made by the late amendments.411 

The error of the expounders on this subject.411 


CHAPTER X. — All Treason is against the State. 

The treason clause is the law of the states.413 

The federal instrument itself proves this view.414 

Inter-state faith is the sole basis..415 

Illustration by the case of Virginia .415 

The transfer of allegiance an absurdity.416 

Let Massachusetts testify.417 

Vermont and Kentucky add decisive proof.418 

Let us first take the case of Vermont.419 

Kentucky’s view on the subject.419 

The early faith on this vital subject.419 

CHAPTER XI.—All Treason is against the State. (Continued.) 

The crime is against society.421 

It is necessarily against the state.422 

Naturally disunion ends federal treason.422 

Naturally states can undo what they do.423 

But the matter is on a higher plane.423 

The real tie binding the citizen to obey.424 

CHAPTER XII. — Conclusion. 

Our whole system is states.425 

Why fight facts ?.425 

Men naturally associate.425 

Free states gravitate like free men.426 

Who saved the states ?.•.426 

Civil rule and legal coercion still stand .426 

Evasion of Jefferson Davis’s trial.427 

The true sanction of the union.427 

Inter-state faith the only basis.427 

Hold sacred the muniments of liberty.427 

Constitutions harness power.427,428 

Our most dangerous perverters.428 

Title by assertion.428 

Anathema.428 

Let us acknowledge our sovereigns.429 

The palladium of all our blessings.429 

The people choose to be states.429 

The rightful central power.429 

Plain common sense as to union.430 

Man — the sole object of institutions.430 

The Alpha and Omega of the book ..431 
















































CONTENTS. 


xxvii 


APPENDIX. 

A. The Union of States. 

No. 1. — Extracts from the Massachusetts Centinel . . . 433 

No. 2. — Extracts from the Virginia Gazette.457 

No. 3. — Extracts from the American Museum.467 

No. 4. — Extracts from the American Magazine .... 491 
Extracts from the Columbian Magazine .... 494 
Extracts from the Massachusetts Magazine . . . 495 

B. The Federal Constitution. 

The instrument with the confederate changes . . . 497 et seq. 

The parties and the ordaining words.508 

The amendments. 609 et seq. 

The names of the attesting planners.512 

Documents referring to establishment.513 et seq. 

C. Federation always Intended. 

No. 1.—Instructions to the delegates of 1787 . . . 516 et seq. 

No. 2. — The acts of ratification. 523 et seq. 

No. 3. — The intent of the convention of 1787 . . . 528 et seq. 

D. The Highest Contemporaneous Exposition. 

Extracts from the Federalist. 537 et seq. 

E. Institutes of Freedom. 

Proclamation of Massachusetts, January 22, 1776 . . 546 et seq. 

Resolutions of Virginia, May 15, 1776 . 548 et seq. 

Declaration of Independence. 650 et seq. 

Virginia Bill of Rights. 553 et seq. 

Massachusetts Bill of Rights. 555 et seq. 

The Tenth Amendment. 559 et seq. 

F. Webster’s real Constitutional views. 

Report of 1819 on the Missouri question.561 et seq. 

G. Extracts from “ The Lost Principle ” by “ Barbarossa.” 

572 et seq. 

H. Review of Stephens and Jameson. 577 et seq. 























PART I. 


A GENERAL VIEW. 

































































































































wP^gpi p.f4 • $>*'3 
















THE REPUBLIC OF REPUBLICS. 


PART I. 

A GENERAL VIEW. 


CHAPTER I. 

INTRODUCTORY. 

T HE American colonies of England were, at first, so many little 
flecks of civilization shining on a pagan shore, like glow-worms 
in the dark. These little societies were then separated, each from the 
others, by hundreds of miles of unbroken forest. All grew rapidly, 
spreading from their respective centres; but there was no political f 
coalescence. The mental eye follows them in all their separate histo¬ 
ries, until they finally appear as stars grouped in a glorious constella¬ 
tion, each shining with unborrowed light. 

Each from the first was organized and governed by the sovereign 
power of England, separately from the rest. Such organized colony 
or province was a body, fit for the indwelling of a soul. To make a 
state, the peculiar and essential characteristic was required, which in 
political philosophy is recognized as distinguishing a state from a 
colony, province, county, or other subdivision of a state — the absolute 
right of self-command or self-government in all things; so that when 
independence was consummated, the aforesaid body became instinct 
with its own soul. In other words, it became a sovereign state. 

We may compare these colonies to so many branches of a great and 
vigorous tree, each with the vital energy to live and thrive independ¬ 
ently, if lopped off and planted in its own free soil. When severed by 
rebellious swords, each “ became a living soul,” and each necessarily 
possessed sovereign political will over its own territory and people. 
Sovereignty could not be out of it, for there was no political organism 
and no people, other than these thirteen commonwealths. Each was 
untrammelled and free, like an eagle that soars away from his broken 
bonds, and sees no shadow of power between him and the sun ! 

i 





4 


A GENERAL VIEW. 


The colonies associated themselves to effect their independence, 
and made the celebrated declaration of July 4, 1776, as the thirteen 
united states of America; but, like thirteen persons united to effect 
some object, they retained their respective individualities; and 
George III. could but have acknowledged, as he did in 1783, at 
the instance of the American Commissioners, that each state was 
“free, sovereign , and independent.” And it was quite natural, nay, 
unavoidable, that these states should all mutually declare, covenant, 
pledge, and guaranty, as they did do, by their federation or solemn 
league, subsisting at the moment each entered the present union, 
that “each state retains its sovereignty and independence.” But it 
must be noted, that sovereignty was not caused by the declaration, 
the acknowledgment, or the compact, or all of them together, for 
these instruments merely declared — and bound the declarants to 
respect — such entity or fact. In truth, sovereignty only began to 
exist at the moment the power of the state predominated over all 
opposing forces, and became supreme power; and the precise time 
of its origin may be as difficult to determine, as is that of the soul’s 
existence in the human child. Suffice it to say, it existed in the 
state, or not at all; for there was no other possible body for it to 
dwell in than the organized body of people called the state. 

Each one of these. states, thus originating and thus characterized, 
was a republic, that is, a community of people, with the absolute right 
of self-government in all things. This sovereignty of the state is 
indivisible, and remains integral, even though all the powers of gov¬ 
ernment be delegated. A person may give a thousand commands, or 
delegate a thousand powers, concerning what he owns, or of right 
governs, without diminishing his ownership or right of control. So 
with a state. For instance, the agents of the sovereignty of England 
exercise the powers of government throughout her world-wide domin¬ 
ions, while the sovereignty remains enthroned at home, — the absolute 
will of the state. 

“The Constitution of the United States of America” was made or 
constituted by the concurrent action of the thirteen pre-existent 
states referred to, each of which, during all the time of that action, 
“ retained its sovereignty, freedom, and independence,” as was de¬ 
clared by all of them in their solemn league and covenant, — the 
Articles of Confederation. The instrument calls itself a “ constitution 
for” “united states,” and characterizes the arrangement made therein 
as a “union of states.” For instance, Article I., section 2, speaks of 
“ the several states which may be included within this union ; ” Ar¬ 
ticle IV., section 3, declares that “ new states may be admitted into 
this union;” and Article IV., section 4, includes the phrase, “every 


INTRODUCTORY. 


5 


state in this union.” Moreover, the said constitution declares that it 
■was to be “ established,” and take effect, “ between the states so rati¬ 
fying the same.” Nay, more; its powers were only delegated, and 
hence must be wielded by trustees and agents, chosen by, and subor¬ 
dinate to, the delegating states, while the “ powers not delegated are 
reserved to the states respectively, or to the people” of the same. 
There is no evidence, or even hint, of any change of character of the 
states; but, on the contrary, they are named in the constitution as 
absolute and complete political bodies, which are necessarily the 
parties to, and the actors under, the federal system. And, finally, all 
elective power and right was inherent and absolute in the people com¬ 
posing these states, as their constitutions show; and moreover, they 
declared in their federal constitution that they were, as states, to keep 
and exercise the said elective power. It is provided in Article I. that 
“the people of the several states ” are to choose the “representa¬ 
tives ; ” and that “ each state” “ by the legislature thereof,” is to elect 
senators. Article II. provides that “each state shall appoint” presi¬ 
dential electors. These congressmen and presidential electors are 
citizens and subjects of their respective states, and in their vicarious 
and representative character, they appoint all other federal officers. 
So that here, in the constitution itself, we have the most positive and 
absolute proofs that the states are sovereign over the federal govern¬ 
ment, this being their mere agency, or, in other words, a part of their 
machinery of self-government . 

If the states are equal, if the constitution and the resultant gov¬ 
ernment are made by their will, and if they elect their own subjects 
or citizens as functionaries, there can be as little doubt of their sove¬ 
reignty as there is that God reigns supreme over His creations. And 
not a word of American history, or a principle of governmental phi¬ 
losophy, is inconsistent with this view. So plain are these facts to 
thoughtful and conscientious men, that the government’s claim of 
“ absolute supremacy ” over allegiant states, voiced in the thunders 
of the recent war, sounds like the knell of that constitutional freedom 
of which the states were the very citadels. The founders of American 
liberty taught the capacity of our people for self-government, or, in 
other words, that all questions could be settled as they arose, by 
reason, with justice, and without force. They said the system they 
founded was fraught with the blessings of peace; but while their 
footsteps are yet echoing in “ the corridors of Time,” and while we are 
extolling their patriotic wisdom, boasting of the precious inheritance 
they have left us, and singing pseans to Freedom, the very constitu¬ 
tion they founded on these principles, is perverted from its purpose, 
and employed as the means of destroying a million of our brethren, 


6 


A GENERAL VIEW. 


filling the land with mourning, annihilating at least one-half of the 
property of the country, creating an inextinguishable and crushing 
debt, depriving one-third of our free and equal states of the last ves¬ 
tige of their equality and freedom, and establishing a precedent which, 
if placed upon the generally assumed basis and followed, subjugates 
all the states to the “absolute supremacy” of a central and irrespon¬ 
sible power, and destroys constitutional liberty. For if “the gov¬ 
ernment ” has “ absolute supremacy ” over the states that made it, as 
the Philadelphia Convention of 1866 declared, its unlimited right of 
taxation, and of raising armaments, enable it to control all states and 
sections of states at will, and, filially, to establish an empire. In 
truth, this has already been done. Whenever there is “absolute 
supremacy” in “the government,” there is no limit to its will or dis¬ 
cretion. Unlimited power in human hands may become as gross a 
tyranny as could be exercised by a monster, with the soul of Mephis- 
topheles in the body of a tiger; for man has the capacity, and only 
requires the downward training, practices, and incentives, to become a 
devil. Satan was once an angel of light. Nero, and other tyrants, 
and associations of tyrants, possessing absolute supremacy, rivalled 
him as nearly as human infirmities and trammels would permit. It 
is vain to talk of civilization and Christianity as restraints. Bad men 
use these as the most potent means to their ends. It is vainer to 
talk of constitutional restrictions, when rulers by perjured usurpation 
act — and glory in acting — in the infinite field of discretion “outside 
of the constitution.” And it is vainest to suppose that the phrase 
“ according to the constitution ” is other than a meaningless one, as 
long as the phrases, “ absolute supremacy in the government,” and 
“ state sovereignty is effectually controlled,” are recognized as consti¬ 
tutional ones; for “ state sovereignty ” is precisely “ the sovereignty 
of the people,” the said people having never been organized for gov¬ 
ernment, and having never exercised political authority except as 
states; so that if “ state sovereignty is effectually controlled,” the 
sovereignty of the people is effectually controlled, and republican 
government is at an end! It is simple mockery to reply that the 
“ absolute supremacy ” is, by the nation, limited to the grants of the 
constitution, or, in other words, that the states are sovereign, except 
as to the powers surrendered, when the twin dogma is, that the federal 
government is the final judge of the extent of its powers. Our worst 
men often get the highest places, and exercise this final judgment; 
their consciences are equal to any occasion; and they gain what they 
wish, by ignoring, or rather violating, their oaths, and justifying them¬ 
selves by the tyrant’s plea — necessity. Indeed, we have recently 
seen that the people’s “ trustees and agents ” called themselves “ the 


INTRODUCTORY. 


7 


Government; ” claimed absolute supremacy and regal prerogatives; 
dissolved states and made new ones; changed the state governments; 
removed the highest officers thereof; gave, and took away, voting 
power; and, in short, did many revolutionary enormities “ outside of 
the constitution.” These things, which every officer of the govern¬ 
ment was sworn not to do, were really treasonable to the last degree, for 
they destroyed the existence of the states, and dethroned the sove¬ 
reignty of the people who . were the states, and who politically existed, 
and politically acted, only as states. Suffrage is — humanly speaking 
— “ the pearl of great price ” in republican freedom. It is vital to lib¬ 
erty, and must be absolutely controlled by the people who own it, and 
not by any government. The voting power belongs, of original and 
absolute right, to the community called the state, who are the real gov¬ 
ernment — what we call “ government ” being the agency thereof; and 
a republic being a government of the people by the people. Says 
Montesquieu (I. Esprit des Lois, p. 12): “In a democracy, there can 
be no exercise of sovereignty but by the suffrages of the people, which 
are their will. Now, the sovereign’s will is the sovereign himself; 
the laws, therefore, which establish the right of suffrage, are funda¬ 
mental to this government. In fact, it is as important to regulate, 
in a republic, in what manner, by whom, and concerning what, suf¬ 
frages are to be given, as it is in a monarchy to know who is the 
prince, and after what manner he is to govern.” 

The original voting power is the people composing the society or 
state, in whom, as every state constitution declares or implies, “ all 
political power is inherent.” The derivative or delegative voting 
power is an endowment, by society or the state, of individual mem¬ 
bers designated and described as voters, in the constitution of the 
state. As Montesquieu says, “ the laws which establish the right of 
. suffrage are fundamental to the government,” and hence they are 
found only in the fundamental laws of the states, established, of 
original right, by sovereign power. It is plain, then, that if the gov¬ 
ernment (whether state or federal) controls or disposes of suffrage, 
without warrant in the constitution, it strikes at the very vitals of 
the republic, from which it derives its entire existence and power, 
and commits perjured usurpation, as well as flagrant treason. It is 
equally plain that an insidious and fraudulent revolution is now 
going on, tending to subjugate the people of this country—just as 
all other free peoples have been — to the “ absolute supremacy of the 
government! ” 

Would to God that I could sear upon the brain and heart of each 
of our states and citizens, the words of that immortal statesman, that 
best English friend of American liberty, Edmund Burke ! “ This 


8 


A GENERAL VIEW. 


change,” said he, “ from an immediate state of procuration and dele¬ 
gation, to a course of acting as from original power, is the way in 
which all the popular magistracies of the world have been perverted 
from their purposes ” 

Oh that our people may heed the warning, and stay the hand of 
Fate, which is even now engraving upon the walls of time, that 


“Our own, 

Like free states foregone, is but a bright leaf torn 
From Time’s dark forest, and on the wild gust thrown, 
To float awhile, by varying eddies borne; 

And sink at last forever! ” 


CHAPTER II. 


PERVERSION. 

A S “the government” now claims “absolute supremacy,” and 
exercises and enforces the same, whenever it thinks “ neces¬ 
sity,” “ the safety of the republic,” or even “ good policy ” requires 
it, “ we, the people,” have obviously lost our freedom. And we can 
only retake and enjoy it, in its active sense of self-government, by 
reasserting and re-establishing the original federal plan, and hence¬ 
forth keeping our general government within our “supreme law” 
establishing it, and compelling the said government to work, as our 
agency, under our sovereignty, with the legal force originally contem¬ 
plated — the same that the state governments work with — and that 
needs no military force, except to aid the civil authority, and put 
down any banded criminal opposition thereto. The states being the 
sole sources of all power, federal military force against any of the 
people, without, or against, state authority, is treasonable. 

To impress upon the reader, at this point, the absolute sovereignty 
of the people, and the subordination of their governments, as well as 
the perfect similarity, in created existence, character, and vicarious 
authority, of the federal and state governments; and, moreover, to 
get an absolute and unquestionable basis for further exposition, let 
us have the sacred testimony of the fathers, as to the seat or resi¬ 
dence of original, absolute, and uncontrollable authority, i. e. sove¬ 
reignty. It is well to observe here, that every state constitution or 
bill of rights expressed or implied that “all political power is in¬ 
herent in the people,” so that the fathers did not, in the following 
extracts, express their opinions merely, but truths— the very insti¬ 
tutes of freedom. 

The Doctrine of the Fathers. — Said Hamilton in the convention 
of New York, in 1788, speaking of the proposed system: “What is 
the structure of this government % . . . The people govern. They act 
by their immediate representatives.” He evidently knew of no “ ab¬ 
solute supremacy” in “the government.” John Jay, of New York, 
the first Chief Justice of the United States, wrote as follows, in his 


10 


A GENERAL VIEW. 


“ address to the people ” of that state, in favor of the federal constitu¬ 
tion: “The proposed government is to be the government of the 
people. All its officers are to be their officers, and to exercise no 
rights but such as the people commit to them. The constitution only 
serves to point out that part of the people’s business, which they think 
proper by it to refer to the management of the persons therein desig¬ 
nated.” Does not that mean the constitution of an agency? Judge 
Parsons, one of the greatest statesmen and jurists of Massachusetts, 
in the ratifying convention of that state, characterized the federal 
government as “a government to be administered for the common 
good, by the servants of the people, vested with delegated powers, by 
popular election, at stated periods.” “ The federal constitution,” con¬ 
tinued he, “ establishes a government of this description, and, in this 
case, the people divest themselves of nothing; the government and 
powers which the congress can administer, are the mere result of a 
compact made by the people.” “ The people divest themselves of 
nothing,” said Judge Parsons; that is to say, they govern themselves, 
using an agency for that purpose — Qui facit per alium , facit per se. 
But our modern interpreters say that “ the government ” has “ abso¬ 
lute supremacy,” and can enforce “ the allegiance ” of the very states 
that gave it existence. Said Gen. C. C. Pinckney, of South Carolina, 
in the ratifying convention of that state : “ The sovereign or supreme 
power of the state, with us, resides in the people.” “The general 
government has no powers but what are expressly granted to it.” 
“ By delegating express powers, we certainly reserve to ourselves every 
power and right not mentioned in the constitution.” Said Chancel¬ 
lor Pendleton, the president of the ratifying convention of Virginia : 
“ The people are the fountain of all power. They must, however, 
delegate it to agents, because from their number, etc., . . . they can¬ 
not exercise it in person. . . . When we were forming our slate 
constitution, we were confined to local circumstances. In forming 
a government for the union, we must consider our situation as con¬ 
nected with our neighboring states.” Said John Marshall, after¬ 
wards the great judge, in the same convention : “ Those who give, 
may take away. It is the people that give power, and can take it 
back; what shall restrain them ? They are the masters who gave 
it, and of whom the servants hold it. . . . Are not Congress and 
the state legislatures the agents of the people?” Said Chancellor 
Livingston, in the ratifying convention of New York: “They, the 
people, acknowledge the same great principle of government, . . . 
that all power is derived from the people. They consider the state 
and general governments as different deposits of that power. In this 
view, it is of little moment to them, whether that portion of it which 


PERVERSION. 


11 


they must, for their own happiness, lodge in their rulers, be invested 
in the state governments only, or shared between them and the coun¬ 
cils of the union. The rights they reserve are not diminished, and 
probably their liberty acquires additional security from the division.” 
Said James Wilson, who was the leading statesman of Pennsylvania 
in both the federal and state conventions: “ The supreme, absolute, 
and uncontrollable power is in the people before they make a consti¬ 
tution, and remains in them after it is made.” “ The absolute sove¬ 
reignty never goes from the people.” The Father of his Country 
wrote to his nephew, Bushrod Washington, Nov. 10, 1787, as follows : 
“ The power, under the constitution, will always be in the people. 
It is entrusted to their representatives, . . . their servants. ... 
They are no more than the creatures of the people.” Said Madison 
(who is often called the “ Father of the Constitution,” and who cer¬ 
tainly was “ its ablest expounder ”), in Article 46 of the Federalist: 
“ The federal and state governments are, in fact, but different agents 
and trustees of the people, instituted with different powers. . . . 
The ultimate authority [i. e. the “ absolute supremacy ”] wherever the 
derivative may be found, resides in the people alone.” And he said, in 
the convention of Virginia, in reference to the parties to the union, 
that the phrase “ the people ” did not mean “ the people as compos¬ 
ing one great society, but the people as composing thirteen sove¬ 
reignties.” And it may be stated here that generally, when the fathers 
used the phrase “ the people,” constitutionally, they meant the people 
of the sovereign states, that were the actors in making the federative 
union. They could not have meant otherwise, for the simple reason 
that the people were the states, and the states were the people. In 
his speech of 1833, Daniel Webster, the head of the Massachusetts 
school, decisively admits the above, and destroys the basis of himself 
and school as follows : “ The sovereignty of government is an idea 
belonging to the other side of the Atlantic. No such thing is known 
in North America : . . . with us all power is with the people. They 
alone are sovereign; and they erect what governments they please, 
and confer on them such power as they please. None of these gov¬ 
ernments is sovereign.” No framer of the constitution ever did, or 
could, characterize the federal functionaries they were providing for, 
otherwise than as the states themselves did, as “ substitutes and 
agents,” w T ho were to be and remain as “citizens” and “subjects” of 
the states, being elected by these to execute their will. They consid¬ 
ered “ the people ” to be absolutely sovereign; the states to be “ the 
people; ” all governments to be created, derivative, and vicarious; 
and all of such agencies to be endowed only with trusts of power, and 
to possess, by virtue of imparted authority alone, a coercive jurisdic- 


/ 


12 A GENERAL VIEW. 

tion over the individual members and subjects of the states. No one 
ever hinted that these governments would or could have any original 
or inherent power, or sovereignty, i. e. “absolute supremacy” over 
states and people. And yet, as has been shown, the so-called states¬ 
men and expounders of the day venture to assert that the government 
is “ absolutely supreme,” and holds the states in “ allegiance.” 

The Doctrine of the Perverters. — For immediate and direct con¬ 
trast, let us here note the leading dogmas of the Massachusetts school 
of so-called expounders. Claiming to cite the fathers in proof, they 
teach that oneness of will and action, and not a concurrence of wills, 
caused the constitution; that thereby the American people, though 
once states, have become a national unity — an undivided nation, 
the apparent subdivisions of which are provinces or counties — mere 
fractions and not constituents of the nation; that the constitution 
being “ supreme law of the land,” “ the government ” has “ absolute su¬ 
premacy,” and a right to exact and enforce “ the allegiance of the states ” 
to it; and finally, that the commonwealths of New York, Massachu¬ 
setts, Pennsylvania, Virginia, et als. have no status or rights except 
such as are reserved and assigned to them in the constitution; or, in 
other words, that they are reduced to counties or provinces. These 
ideas are expressed in Lincoln’s first inaugural; in the address of the 
Philadelphia Convention of 1866 ; in Professor Jameson’s work, called 
“The Constitutional Convention,” in the New York Times and New 
York World, and substantially in Webster’s speech of 1833. It will be 
duly seen that all history, all the w^ords of the fathers, all the records 
of the states, and all the archives of the country show that these state¬ 
ments are absolutely untrue! Such teaching assumes that we have 
no political beings called states; no “ federal constitution; ” no 
“united states;” no “union of states;” and no “citizens of states,” 
as the constitution itself teaches; but that the states are consolidated 
into one state , and “ the government,” having “ absolute supremacy,” 
is to control and protect not merely the people, but the states they 
compose, as subjects. In other words, we have an empire of which 
“ the government ” is a corporate sovereign. The action of “ the gov¬ 
ernment ” has been precisely in accordance with these ideas. It has 
vindicated its “absolute supremacy” vi et armis, and coerced the 
states to yield their wills, and consider themselves in the future as 
aggregations of subjects, whose only rights are “reserved” in “the 
great charter ” — the constitution; and who are privileged, as 
“groups of voters,” to express their wishes for the consideration of 
“the government.” In truth, if the people “accept the situation” 
the states are no more ! Have we not chains already imposed upon 
us, so that the coming tyrant has but to rivet them, in order to com¬ 
plete the subversion of our polity ^ 


PERVERSION. 


i3 

The Self-Consolidation of “the Government.” — While this frauc. 

• ulent and treasonable destruction of states, and consolidation of their 
people into an undivided nation is going on, another radical and cor¬ 
responding change is being wrought in the character and theory of 
“ the government.” Originally, a “ senator ” was a citizen and subject 
of a state, elected by her to execute her will; the “ representatives ” 
were such subjects, elected for such purpose by the people of the 
state; the senators and representatives were the delegation of a state 
to the congress of states; and they, with the executive and judicial 
officers (these also being elected or appointed by or for the states), 
constituted the general government. Thus we see that our states 
were a federation, and our general government purely a federal one. 
These separately elected, separately sworn, and separately responsi¬ 
ble functionaries were sent by each state to act as individuals, with 
her authority for the good of all, i. e. to “provide for the common 
defence and promote the general welfare,” and to be checks on all the 
other functionaries — the whole system being one of checks and bal¬ 
ances, to prevent consolidation and tyranny. But these separately 
elected and vicarious creatures have effected the worst form of consoli¬ 
dation, for they now claim corporate capacity, independent existence, 
original right and authority, discretion outside of the constitution, 
regal prerogatives, and, in. short, all the essentials of sovereignty. This 
self-formed corporate body has not merely an esprit de corps , but a 
oneness of will and purpose characteristic alike of a corporation, an 
oligarchy, or an autocrat; and the federal legislature, executive and 
judiciary, which were established as three absolutely independent 
institutions, to watch, and, if necessary, check one another, are now 
so unified as to act with one mind and will on a party platform: 
thus practically changing them into a vast and chronic conspiracy 
against the people’s liberty, as any gang of men, acting with one 
mind in the hiding-places of the constitution and government, and 
constantly influenced by power and money, will gradually become. 
Is our polity to be revolutionized ? Are we not in danger of revo¬ 
lution 1 

.Caesarism. — Under the forms of a republican federation, then, we 
have a consolidated empire, and a corporate despot, just as the Ro¬ 
mans had “ an absolute monarchy disguised in the form of a common¬ 
wealth.” [Gibbon.] The parallelism will hereafter more fully appear. 

The military-trained and military-souled war-secretary of the afore¬ 
said corporate despot, Gen. Schofield, said in 1868 : “ In the Old World, 
it is said that the army is the safety of the empire; with equal truth 
we may say that the army is the safety of the republic.” And Gen. W. 
T. Sherman said, in June, 1878, to the cadets of West Point: “ Hayes 


14 


A GENERAL VIEW. 


has the requisite nerve and determination. He knows his right, and 
dares to maintain it; and, what is more, the army, sworn to defend 
the constituted authorities, would see to it that he was sustained in 
the effort. The graduates of West Point are bound by their oaths to 
protect the government in fact, of which President Hayes is unques¬ 
tionably the head.” Explained by the events and revolutionary teach¬ 
ings and tendencies of the last fifteen years, all this means that what 
any army-backed despot or despotism chooses to style the republic, is 
to be preserved by the army, even against the people that compose such 
republic. It means that the “ government ” has the right to enforce 
its “ absolute supremacy,” vi et armis, in and against the will of a state, 
and that “ so far state sovereignty,” to use the words of Webster, “ is 
to be effectually controlled.” All this has the full and clear ring of 
Csesarism, and it is consonant with Seward’s phrase, “ If they don’t 
keep the peace, we must keep it for them.” Both are symphonious 
■with the “ little bell,” and seem to harmonize with a certain noted 
phrase of the imperative mood, “ Let us have peace.” Nay, more, it 
means that a Grant may become “ a personified force-bill ” — as Wen¬ 
dell Phillips called him — in our once free country, and, at will, declare 
•unhappy Louisianians or New-Yorkers to be banditti, and leave them to 
the tender mercies of some future Sheridan, or other bold dragoon . 1 

Will our Peace be of Contentment or Force ? — A military man 
can be satisfied with the “order’’that “reigns in Warsaw:” but it 
was hoped that when President Grant came to realize that he was a 
civilian, instead of a soldier; that he must act by the written discre¬ 
tion of his sovereigns, instead of his own; that his duty was to exe¬ 
cute ready-made civil laws for all the people, instead of enforcing 
peace with the bayonet in a discontented section; that our govern¬ 
ment is republican and not despotic; and, above all, that the President’s 
judgment and conscience are under oath “to preserve, protect, and 
defend the constitution,” and not under a mere partisan pledge to 
observe an electioneering platform, — he would have given to his ejacu¬ 
lation a hortative or precatory, instead of an imperative sense; and 
that his peace signified the disestablishment of the army, and the 
restoration of the absolute autonomy of the states, so that they, as 
the fathers intended, should govern themselves — locally by their home 
agencies, and federally by their federal one. Grant’s constitutional 
oath — like that of every officer of “ the government ” -— required 

1 In December, 1874, Gen. Sheridan went to Louisiana from a distant region, at once 
assumed command, and telegraphed to President Grant to declare the people, or part of 
them, banditti , and turn them over to him (S.) to deal with as such. The grounds of 
such intervention were mainly false, but approval of his view of things, and his con¬ 
duct, was at once telegraphed back. 


PERVERSION. 


him to treat the states as sovereigns, and to consider armies a:, 
the commanders thereof, as not only subjects of the states, but raised 
and supported by their means, and moved solely by their authority. 
Nay, more, he was bound by his oath to see that such army was em¬ 
ployed for defence, and not for attack of states; and that no federal 
soldier ever crossed a state boundary except by her command, per¬ 
mission, or call, 

A president should but see and know and remember that the 
states are equal bodies. No power can be above them, because the 
constitution is their law, and the government is provided for in, and 
controlled by, the constitution. That instrument says, “ each state 
shall appoint” presidential electors. For the said states, these elec¬ 
tors chose General Grant. He was, then, the electee, servant, and 
agent of the said states, sworn “ to preserve, protect, and defend 
the constitution.” Hence, to keep his oath, he should have regarded 
and obeyed the states as his sovereigns, and dealt with Louisiana just 
as with Massachusetts and New York. 


CHAPTER III. 


HISTORY REPEATS ITSELF. 

A BOUT forty years after the federal constitution went into effect, 
the perverters of the instrument began to teach, as the true 
meaning of it, the identical assertions made originally by its enemies 
to prevent its adoption . These charges were, that the constitution 
purported to be made by the whole people; that it consolidated all 
the states into one; and that, so far as its provisions went, “ so far 
state sovereignty was effectually controlled” by “the government.’’ 
Such was the fear among the people of the several states that these 
charges were true, that it was with the utmost difficulty that the 
friends of the system saved it from defeat. Washington, Hamilton, 
Madison, Wilson, Dickinson, Coxe, Sherman, Ellsworth, Adams, Ames, 
Parsons, Patterson, Livingston, Pendleton, Marshall, and many others 
now immortal, met and triumphantly refuted them, asserting and 
proving the absolute sovereignty of the states, and the vicarious, dele- 
gative, and subordinate character of the federal government. Even then 
the system barely escaped defeat in the larger states, Massachusetts 
adopting it by a majority of 19 in a convention of 355 members; 
New Hampshire by a majority of 11 in 103 members; New York by 
a majority of 3 in 57; and Virginia by a majority of 10 in 168; 
while North Carolina and Rhode Island rejected it by overwhelming 
majorities, though they subsequently joined the union. Indeed, Hil¬ 
dreth, the Massachusetts historian, thinks a majority of all the people 
of the states were opposed to the constitution. 

Nathan Dane, of Massachusetts, one of the original enemies of the 
federal system, seems to be entitled to the honor of originating this 
fallacious exposition of the same. He was the Gamaliel of Story 
and Webster, and they were his faithful disciples. The three may be 
considered as the founders of the Massachusetts school, which has given 
ideas and arguments to what was first a faction, then an enterprising 
minority, and, finally, a victorious party, engaged in overthrowing 
constitutional liberty. The interpretations, commentaries, platforms, 
obiter dicta , etc., of this school, have finally given existence to a sham 


HISTORY REPEATS ITSELF. 


17 


or simulacrum , which is administered in place of the real constitution, 
and serves alike to mask usurpation and tyranny, and conceal from 
the people the lifeless remains of Freedom, — 

“ For, vampire-like, fair freedom’s foes, 

Have, in her slumber, sucked her life away, 

And left her throbless corse to carrion birds a prey! ” 


Such teachings legitimately produced the traitorous claim by the gen¬ 
eral government to the “ allegiance ” of, and “ the absolute supremacy ” 
over, “the united states,” though the said government is a creation 
of the said states, and is personally composed of their citizens and 
subjects. And this theory was put in practice in the recent war, for 
the government subjugated the states, with the very existence, powers, 
and war-means it held from them, as a sacred trust, and which it was 
bound by solemn oath to use only for their “defence” and “welfare.” 
In this we have, par excellence, the crimen Icesce majestatis. 

Usurped Control of Suffrage. — Votes are franchises, given, of 
original right, by the people of a state, as a body-politic, to them¬ 
selves as individuals, or such of themselves as they think fit. Such 
votes are franchises, created by original inherent power, and are in¬ 
struments for, and the only means of, expressing the people’s will. 
By and through them, the people give existence to the constitutions 
■and so-called governments, these being personally composed of the 
citizens and subjects of the states. Hence a governmental right to 
control suffrage is absurd: As Montesquieu says : “ The laws estab¬ 
lishing the right of suffrage ” are “ fundamental ” to the republic; 
and, consistently, we find all voting rights fixed originally, absolutely, 
and without appeal, in the organic laws of the states, by the sovereign 
people thereof. 

But the federal agency now makes revolutionary claim to the 
“ absolute supremacy ” of the country, and to the “ allegiance of the 
states.” Its dogma is that of Lincoln, namely, that the former sove¬ 
reigns of the country have no status or rights except those reserved 
in the national constitution. Of course the insignificant monads 
called votes are deep down in the all-swallowing maw. The people 
may still imagine their voting power to be above the government; 
but they will soon realize that they are merely to elect the directory 
of a corporate monarchy, and that they have about the same amount of 
self-government the English voters enjoy in electing their members of 
parliament, and barely more than the mockery which until recently 
amused, if it did not content, the suffragists of France. It is only a 
mockery of self-government, where any other authority than the people 
themselves can appoint or control the voters. Despotism can always 

2 


18 


A GENERAL VIEW. 


find tools enough to play the republic before the people, while imperial 
polity is being insidiously fastened upon them. The retention by the 
people themselves of this control is, ipso facto , the absolute autonomy 
of the original sovereigns of the country, under which the federal 
and state governments are alike agents. 

The American “ Divine Right ” — In addition to the misteaching 
of the people above mentioned, the same pious fraud has deluded 
them that ever was used in the Old World to reconcile the people to 
the rule of kings. It is taught that our constitution, instead of being 
merely an earthly instrument, involving the political and business 
relations of states, is heaven-inspired, perfect, and to last forever. 
Buchanan and others asserted its divine origin, and its “ essential 
attribute of perpetuity.” It reasonably follows from such premises 
that “the government,” — as such divine institution ought to, — pos¬ 
sesses “ absolute supremacy; ” that “ the states are bound in alle¬ 
giance ” to the government; and that “ state sovereignty is effectually 
controlled,” — the “ states having no status or rights” but such as the 
nation, in its “ supreme law,” gives them. No stronger terms than 
these of Lincoln, Webster, and the Philadelphia Convention could 
possibly be used to express the sovereignty of the British, French, or 
Prussian governments over their provinces and people; and they are 
utterly baseless, and absurdly inconsistent with republican ideas. 

The Imported Theory of the Social Compact. — The perverters 
try to delude the people into ignoring the real social compact which 
constitutes an American state, and unwittingly adopting the exploded 
European theory of the social compact, wherein the people are said 
to agree to pay taxes and supply “ the government,” or monarch, with 
purple, fine linen, and sumptuous fare, while it or he is to govern and 
protect the people. 1 And we have militarily educated and trained our 
Grants, McClellans, Shermans, Hancocks, Schofields, Blairs, and Sheri¬ 
dans, so as to have them ready to maintain by force this social com¬ 
pact, and show that “ the army is the safety of the republic ” thus 
formed. And these pseudo-republicans all contend that “the alle- 

1 These perverters say that Hume and others exploded this theory, and that, there¬ 
fore, the idea of a social compact in America must be discarded, except as regards the 
compact, by which, they say, a nation was formed. They ignore the fact that society 
was already formed and complete (as, indeed, it had been for generations), when the 
federal system was adopted, and the so-called nation made; and that societies, each act¬ 
ing for itself, with its own mind and will, made that system, and endowed it with its 
only existence and force. Nay, more, they conceal the fact that Hume did not discuss 
the idea of the republican social compact, but expressly said, writing before the inde¬ 
pendence of our states: “ My intention here is not to exclude the consent of the people 
from being one just foundation of government, where it has place. It is surely the best 
and most sacred of any. I only pretend that it has very seldom had place in any degree, 
and that, therefore, some other foundation of government must also be admitted.” 
[Hume’s Essays, No. xii.] / 


HISTORY REPEATS ITSELF. 


19 


giance,” both of citizens and states, is due to “ the government,” which 
hires and uniforms them, and is to be enforced by arms, if not vol¬ 
untarily yielded. And “conservative” Liebers, Curtises, Johnsons, 
Jamesons, “Intelligencers,” “Worlds,” and such like, all over the 
country, stand ready to justify by argument these outrageous perver¬ 
sions of constitutional republicanism. Starting with the postulate of 
a social compact forming a nation, the argument of the perverters 
is easy, compendious, and practical. The “national constitution” is 
“ the supreme law of the land.” This gives “ the government ” “ ab¬ 
solute supremacy.” The duty to protect, which devolves on the gov¬ 
ernment, is coupled with the right of control, and this extends to the 
effectual control of state sovereignty, as well as of all the civil and 
political rights of the people. And, though there are limits to the 
authority of the government, which are admitted, it is claimed that 
these are to be determined by itself. Said Daniel Webster: “ It 
rightfully belongs to congress, and the courts of the united states, to 
settle the construction of this supreme law in doubtful cases ; ” that 
is to say, the government is (as Jefferson phrased the claim) “the 
exclusive and final judge as to the extent of the powers delegated to 
itself.” And finally, “the government” has the inherent right to 
preserve its existence and its powers. 

Here is exhibited the precise change Burke refers to, as the one 
whereby “ all the popular magistracies in the world have been per¬ 
verted from their purposes,” namely, “ the change from an immediate 
state of procuration and delegation, to a course of acting as from original 
power.” We have, as had the Romans in the time of Augustus and his 
successors, imperialism “ disguised by the forms of a commonwealth.” 

A Roman Chapter of American History. — A few extracts from 
the third chapter of Gibbon’s “ Decline and Fall” are apposite, instruct¬ 
ive, and warning : “ The tender respect of Augustus for a free consti¬ 
tution which he had destroyed, can only be explained by an attentive 
consideration of the character of that subtle tyrant. A cool head, an 
unfeeling heart, and a cowardly disposition prompted him, at the age 
of nineteen, to assume the mask of hypocrisy, which he never after¬ 
wards laid aside.” 

“ When he framed the artful system of imperial authority, his mod¬ 
eration was inspired by his fears. He wished to deceive the people 
by an image of civil liberty, and the armies by an image of civil gov¬ 
ernment.” “ The names and forms of the ancient administration were 
preserved by him with anxious care. The usual number of consuls, 
praetors, and tribunes were annually invested with their respective 
signs of office, and continued to discharge some of their least important, 
functions.” “ Caesar,” continues Gibbon, “ had provoked his fate by 


20 


A GENERAL VIEW. 


ostentatiously taking the title of king, while he might have reigned 
as such under the title of consul or tribune. Augustus was sensi¬ 
ble that mankind is governed by names ; nor was he deceived in his 
expectation that the senate and people would submit to slavery, pro¬ 
vided that they were respectfully assured that they enjoyed their 
ancient freedom.” “ To explain in a few words, the system of the im¬ 
perial government, as it was instituted by Augustus, and maintained 
by those princes who understood their own interest and that of the 
people, it may be defined as an absolute monarchy disguised by the 
forms of a commonwealth. The masters of the Roman world envi¬ 
roned their throne with darkness, and humbly professed themselves 
the accountable ministers of the senate, whose supreme decrees they 
dictated and obeyed. The face of the court corresponded with the 
forms of the administration. The emperors, if we except those tyrants 
whose capricious folly violated every law of nature and decency, dis¬ 
dained that pomp and ceremony which might offend their country¬ 
men, but could add nothing to their real power. A feeble senate and 
enervated people cheerfully acquiesced in the pleasing illusion, as long 
as it was supported by the virtue, or even by the prudence, of the 
successors of Augustus. It was a motive of self-preservation, not a 
principle of liberty, that animated the conspirators against Caligula, 
Nero, and Domitian. They attacked the person of the tyrant, with¬ 
out aiming their blows at the authority of the emperor.” 

In the reign succeeding that of Augustus, “ the assemblies of the 
people were forever abolished, and the emperors were delivered from 
a dangerous multitude, who, without restoring liberty, might have 
disturbed and perhaps endangered the established government.” And 
some of the successors of Augustus, “ scrupulously observed his con¬ 
stitutional fictions.” As late as the age of the Antonines the Greek 
historians say, that “ although the sovereign of Rome, in compliance 
with an obsolete prejudice, abstained from the name of king, he 
possessed the full measure of regal power.” As imperialism became 
more fully established, the forms and shams were dispensed with. 
“The fine theory of a republic,” says Gibbon, “insensibly vanished.” 

History has repeated itself; republicanism has perished in America, 
as it did in Rome. The form is left, but the soul is wanting. “ Ab¬ 
solute supremacy ” in “ the government ” and republican freedom can¬ 
not co-exist, for the reason that the latter is the absolute right of the 
people to govern themselves, and to make and unmake all govern¬ 
ments at will. If the people would enjoy freedom again, they must 
retake sovereignty — “peaceably if they can, forcibly if they must.” 

“ Who would be free 
Themselves must strike the blow.” 


HISTORY REPEATS ITSELF. 


21 


♦ 


Philosophy teaches us specially, by the examples of Roman his¬ 
tory. We find there the same perversions and usurpations, and the 
same destruction of liberty, in the name of liberty, that we have ex¬ 
perienced. “Marius and Csesar,” says Gibbon, “subverted the con¬ 
stitution of their country, by declaring themselves the protectors of 
the people; ” and Augustus pretended to be a servant of the people, 
while destroying their liberty, and making himself a dictator. He 
established “ an absolute monarchy, disguised by the forms of a com¬ 
monwealth.” “ His successors for a while observed his constitutional 
fictions,” but the “ republic insensibly vanished.” Like ours, the rep¬ 
resentatives of the Roman people ignored their delegative capacity and 
acted “ as from original power.” Those perverters and usurpers, like 
ours, pleaded necessity ; the welfare of the people; the public safety; 
the life of the nation, and the inherent right to preserve their own 
existence. With them, too, “ the army was the safety of the repub¬ 
lic ’• ! This institution, composed of hirelings, as time advanced, 
became more and more recruited from foreign sources, and more and 
more depraved in materials. It acted long as an efficient instrument 
of tyranny, and finally set up the business for itself, and sold the em¬ 
pire at auction! 


CHAPTER IV. 


SECESSION AND COERCION. 

I T is incontrovertible that the federal system is states united, and 
that these must always be sovereign, and superior to the gov¬ 
ernments they create.’ It is equally plain that the “ national unity,” 
the “ absolute supremacy ” of “ the government,” and the allegiance 
of the states thereto, which are asserted by the Massachusetts school, 
are absurd and pernicious, as well as traitorous falsehoods. 

This “ federal system ” is precisely what Montesquieu and other 
publicists happily call a “republic of republics.” Natural persons 
by social compact form the society called the state, which is a repub¬ 
lic. Such state is a moral or political person, as contradistinguished 
from a natural one. For mutual protection, and general government, 
it joins other such political persons in federal compact, thus forming 
the “ republic of republics,” or “ union of states,” as the federal 
instrument characterizes the system formed by it. “ Community of 
communities,” “ confederation of republics,” “ united states,” etc., 
etc., are other phrases of public writers, signifying the same political 
system. 

Natural persons, then, form states, while these, as political per¬ 
sons, form the federation called “ the United States.” The con¬ 
stitution contemplates these political bodies as solely the sources of 
power, and of elective right. Every voter acts for the state, and gets 
his special endowment of authority to vote from her alone. She 
settles the matter, as a sovereign, in her organic law. Hence we see 
that the representatives are elected by the states, as are the senators 
and the president; and that all of these, together with the officers 
they appoint, are “the government of the . . . states” under “the 
constitution of the . . . states.” 

Omitting from the above constitutional phrases the participial adjec¬ 
tive, which, with the sense of joined or associated , qualifies or 
describes states, we easily distinguish between the political entities 
that form the federal system, and their mere qualities; and see that 
the only nation we have, or can have, is self-united or associated 


SECESSION AND COERCION. 


23 


states — the system being properly described as a “ republic of repub¬ 
lics,” or a “ union of states.” 

No Constitutional Coercion of States. — Our states being equal 
and voluntarily joined, the constitution being the expression of their 
will, and the federal government being their agency, in the very 
nature of things no coercive power over them could be derived from 
the constitution. Moreover, if they were once voluntary parties, 
they could not have become involuntary ones, without their own 
action; for they have the sole power of amendment [see Art. V.], 
and, to cap the climax, the fathers were unanimous in excluding the 
power of coercion from the federal compact, and, out of abundance of 
caution, guarding against it by amendment, all of which will be here¬ 
after fully shown. Buchanan, Lincoln, and others argued that the re¬ 
cent exertion of federal force against certain states was not coercion of 
states, but was military coercion of persons, banded to oppose* the 
federal laws, or, in other words, the putting down of a rebellion; but 
such views are dignified by calling them weak sophistry. For the said 
states acted as bodies in making the constitution; they moved as such 
in seceding; and they warred as such in resisting coercion. And, in 
each case, they respectively exercised that right of command over the 
citizens which results from the social compact, binding each to obey 
the collective will; and which is sovereignty itself. On the other 
hand, the federal functionaries were fighting to enforce an ordi¬ 
nance which the state had originally ordained, but had repealed, 
and made it treasonable to obey, namely, the ordinance of ratifi¬ 
cation, which, as to the said state and her citizens, gave to the said 
constitution, and the resultant government, their only possible valid¬ 
ity and warrant. 

The only Basis of Coercion. — To coerce a state is unconstitu¬ 
tional ; but it is equally true that the precedent of coercing states 
is established, and that it is defensible under the law of nations. 
If this be correct, all will agree that such ultima ratio should be 
placed at once on its own ground, and its limits defined, so that our 
constitution may be vindicated and held sacred in the future, and 
the conscience of the people of the victorious states be relieved of 
the charge of violating the “ supreme law of the land,” in coercing the 
-states that ordained it, and killing their people for defending them; 
for nothing can more demoralize, and finally demonize, the people, 
individually and collectively, than the consciousness of having com¬ 
mitted such crimes, the determined enjoyment of the fruits thereof, 
and the constant making of false excuses to their consciences and to 
the world. 

Where the constitution does not provide a treaty stipulation or 


24 


A GENERAL VIEW. 


conventional rule, by which to settle a question arising among or 
between our states, the law of nations is to be resorted to, for the 
constitution only displaces such law pro tanto. This law would, if 
the federal compact w'ere annulled, at once govern all questions 
among our states, just as it now does those arising among the states 
of Europe. The truth is, the purpose of the federal compact was the 
settlement of such international questions as it provides for and closes, 
such questions having been, as long as they were open and debatable, 
international ones. And it may be well to observe here, that the 
word “ states,” used in the constitution to designate the contracting 
powers that ratify and make it, is used in juxtaposition with, and has 
the identical meaning of, the word “ states,” that signifies the powers 
of Europe [see Art. III., § 2 ; Art. XI., amendments]; and it is 
absurd to suppose that Massachusetts, New York, or Virginia, in 
making a constitution of government, deprived herself of statehood 
or nationality, when she merely declared her will, which remained in 
her, and parted with no portion of her own being; and when her 
name, description and essentials, were, after associating, entirely 
unchanged. Neither the constitution nor history warrants the re¬ 
stricted meaning vulgarly given in our country to the word “ states .’* 
Accurately speaking, it was nations or states that federated, and 
thereby formed our “community of communities,” or “republic of 
republics.” 

In seceding, the Southern commonwealths exercised an indispu¬ 
table right, though they acted with impolicy, and erred in ignoring 
the operation of international law. In higher politics — those of 
nations in their dealings with one another — acts become precedents, 
and make rules of law. So, in the case before us, the successful 
coercion of states made a precedent, and established a law. As seces¬ 
sion affected the interest of the adhering states, questions arose for 
them to consider; and, treating the matter as one in foro conscientice , 
they could cogently reason that the case of a seceding state, to make 
her secession justifiable under the jus gentium , should contain the 
same ingredient that makes a homicide one of self-defence — the pre¬ 
vious “ retreat to the wall.” 

The Southern commonwealths were really fighting for constitutional 
liberty, which, under the circumstances, they thought seriously im¬ 
perilled, and likely to be preserved by secession. Earl Russell’s asser¬ 
tion was true, that “ the South fought for independence, the North 
for empire.” The wish of the former for constitutional liberty and 
independence was manifested by their adopting the federal constitu¬ 
tion, with scarcely a change. Secession was justifiable if there was. 
no other mode of self-preservation, or remedy for wrongs; for self- 


SECESSION AND COERCION. 


25 


preservation was the first law of nature to states as well as persons. 
But they had not properly come to this last resort, as we shall see, 
by noting the unpleaded pleas of the states that remained united — 
pleas under the jus gentium. 

1st. These had the right to assume that Providence intended, as 
our fathers did, that all the territory between British America and 
Mexico should be under one political system, and they had a right 
(not under the constitution, which the state voluntarily made, and 
could voluntarily abandon, but) under the jus gentium to prevent or 
to cure disruption. 

2d. They had the right to object to the establishment of a contig¬ 
uous foreign state or federation, with its necessary rivalry, and 
antagonistic interests and policy, and the inevitable and ever-recurring 
international troubles. 

3d. They could complain that, in spite of constitutional engage¬ 
ments, as well as in disregard of the respect due to the fathers, 
secession should be resorted to before exhausting all the remedies 
contemplated and provided for in the constitution, or arising out 
of the circumstances; especially as Congress, the Supreme Court, 
and a numerical majority of about 1,000,000 popular votes, were 
on the side of conservatism against a weak president, and could 
make the remedies efficient. This alone was justification enough 
under the jus gentium for the adhering states to coerce back the 
seceding ones. 

And other pleas might have been made — as to the territory occu¬ 
pied by the new states, as to forts, armaments, public property, etc., 
as well as the federal debt. In all these cases, precision of pleading 
and absolute sufficiency, were unnecessary, for states are to judge for 
themselves, in the last resort, as to subjects of complaint and cases of 
war; and our states in their federal constitution, provided no mode 
of settlement or tribunal for such matters, so that the law of nations 
was the only resort for rules of action. 

And here it is well to observe that while the seceding states acted 
with impolicy, and were wrong in the respects and to the degree 
mentioned, the coercing ones w T ere gravely to blame for the original 
causes of the trouble — for constant and manifold aggressions and 
acts of injustice ; and, finally, for their non-conciliatory and uncom¬ 
promising spirit, and their disinclination to resort to diplomatic expe¬ 
dients under the law of nations to avoid so awful a recourse as war, 
which, if it can be avoided with honor and integrity, is a most heinous 
crime. And, moreover, a party demanding justice before any tribunal,, 
must himself have sought to do justice. 

Our System as thus Modified. — The precedent, then, may bo 


26 


A GENERAL VIEW. 


considered as established (not in the constitutional, but) in the inter¬ 
national part of our law and politics, that all other means of getting 
justice, and preserving self-government and statehood, must be ex¬ 
hausted before secession is allowable. But it is as republics that 
states are to be held in, or coerced back to, the union; for the great 
end always in view is the preservation of constitutional liberty, as 
established in the states, under the guidance of the fathers; and this 
necessitates absolute self-government of the people as organized. 

These, then, may be considered as the cardinal principles of our 
system, as it stands at present: 1. We have states self-associated for 
their self-protection and self-government. 2. Their status is that of 
sovereign political bodies, known to the law of nations, and described 
in the constitution as states. 3. Being republics or self-governing 
peoples, they must, according to the law of their nature, govern 
themselves, not in any qualified sense, but absolutely. 4. Their gov¬ 
ernments, state and federal, are agencies, and subordinate to them. 
5. The federal agency has the joint authority of the states to govern 
their citizens within certain limits, and wield the coercive means en¬ 
trusted to it; but there is but one rule of duty for it, i. e. the consti¬ 
tution, which each member of the agency is sworn strictly to observe, 
and which cannot be disregarded without perjured usurpation. 6. The 
states must remain in the union, till the last remedy the constitution 
affords against injustice, and loss of self-government and statehood, has 
been resorted to. 7. When constitutional means are exhausted, or 
show themselves to be vain, any means of self-preservation is justifia¬ 
ble to a state, for it is according to the first law of nature. 8. If 
secession be the remedy a state finally determines on, it affords the 
occasion for diplomacy or war, as among other nations. 

Two Important Ideas. — 1. Suppose given states, then, to have 
gone through the forms of secession : the adhering ones, without de¬ 
nying either the fact or the right of secession, may, for the sake of 
the argument (i. e. the ultima ratio), concede that the former are out 
of the union, proceed to fight them as foreign states, amenable to the 
jus gentium , and enforce their return — controlling and using there¬ 
for, the federal agency and its forces; while, on the other hand, the 
coerced states cannot invoke, as against such coercion, the constitu¬ 
tion they have abandoned. 

2. Upon such basis, the coercion of states is not inconsistent with 
the federal compact. But the states victorious in the recent war, 
claimed that the acts of secession w T ere null; and that they resorted 
to constitutional coercion. By these pleas they simply convicted 
1 hemselves of warring upon states in the union, of violating the con¬ 
stitution, and of causing flagrant usurpation and perjury on the part 


SECESSION AND COERCION. 


27 


of their rulers. Nay, more, they have done the infinite mischief of 
making these high crimes precedents for the future; of justifying 
pleas of necessity for arbitrary acts — the very things constitutions 
were established to prevent; of introducing and vindicating unlimited 
discretion and regal prerogatives in the federal agency; and, finally, 
of showing the states that, if aggrieved, their only alternatives are 
submission or war ! Such were not the ideas of the fathers ! 

As to the right of secession, it will hereafter be shown, by author¬ 
ities that no one will venture to gainsay, that it is (not constitutional 
but) inherent and inalienable : that it is absolutely essential to, and 
pro tanto identical with, freedom ; and that it was taken for granted, 
or expressly stated by the fathers, as indispensable to preserve state¬ 
hood and liberty. It is, indeed, a right as absolute and indestructible, 
as the state itself. Without it sovereignty cannot exist, and there 
can be no self-preservation of the original and only constituents of 
our “ republic of republics.” 1 

1 Every American ought to read “Is Davis a Traitor? ” by Professor Bledsoe. Most 
conclusively does it vindicate the right of secession; and it forms the best criticism ever 
written of the constitutional expositions of Story and Webster. With great deference, 
however, I object to his implication that secession is a constitutional right. So with the 
assumption of Mr. A. H. Stephens and others, in 1868, at the White Sulphur Springs, 
that the right of secession can be abandoned. Self-preservation is the first law of 
nature — most especially to commonwealths; and God designs a state to secede, if her 
“defence” and “welfare,” which He has charged her with preserving and promoting, 
require it. 


CHAPTER V. 


REBELLION OR NOT ? 


SSUMING it to be a principle or rule established by the war ? 



J~\. that if one of our sovereign states secedes from the union with¬ 
out first exhausting all the means of justice the constitution affords, 
she is to be forced back into the union, to govern herself therein; let 
us look introductorily, at another intensely interesting and vital ques¬ 
tion, which recent events have forced upon the American people, and 
which the perverters have made every possible effort to dodge, and 
prevent investigation and decision upon. 

Were the Confederates Rebels and Traitors?^ It is anxiously 
asked by all thoughtful and conscientious men, who seek for constitu¬ 
tional truth and know its value : What law, divine, international or 
civil, consigned Davis, Lee, and the other confederates to death (for 
all alike are guilty or not guilty), when states, as political bodies, or 
vehicles, carried them — without their volition — from the union, and 
constrained them to obedience and military service; and when this 
obedience ran on all fours with the noblest impulses of the human 
heart, and with the first, best, and most imperative law of nature — 
self-preservation? for every member or citizen of such state, who 
obeyed her, was defending his home, his family and kindred, his 
friends, his neighbors and fellow-citizens, and the commonwealth which 
involved and protected them all — in short, everything for which a 
man wishes to live. In truth, vindicating the action of Davis and 
Lee is vindicating American institutional liberty, or the right of the 
American commonwealths to exist, and to exercise free will in self- 
government, whenever and however they please. 

A state is the citizens thereof. She is a complete political body, 
formed, as Massachusetts, in her organic law, declares, by “a social 
compact, in which the whole people covenants with each citizen, and 
each citizen with the whole people, that all shall be governed by cer¬ 
tain laws for the common good.” Collectively, therefore, the citizens 
govern, while individually they obey, each citizen having two capaci¬ 
ties— the one as a voter or governor, and the other as a subject. It 


REBELLION OR NOT'? 


29 


is obvious, then, that each citizen must obey the body, she having, by 
immediate grant in the social compact, actual possession of him, and 
full power to coerce and punish him. So that while, on the one hand, 
the citizens must absolutely obey all her political determinations, on 
the other, it must be right, and not treasonable, for them to disobey 
any counter authority. She must be solely and always the supreme 
power. 

This commonwealth of citizens, in her organic law, endows fit mem¬ 
bers with suffrage, thus, by virtue of original, absolute and inherent 
right, ordaining the actual and efficient governing power, which is a 
delegative trust. Thus we see that the commonwealth is the real 
government, while the body of electors is its original agency of gov¬ 
ernment, by and through which, existence and authority are given to 
all constitutions, so-called governments, and officials, state or federal. 
This exhibits our representative republicanism, or self-government. 

The citizen votes for the safety and welfare of the state, under her 
authority; and, when votes fail, he fights for the same object, under 
the same authority, against all foes, whether external or internal. 
Voting and fighting are correlatives, and both are done in obedience 
to the instinct of self-preservation — the first law of nature — the 
same instinct that prompted men to form the societies called states, 
and these to form the federation called “the United States.” The 
only possible original and ultimate judgment and will to decide when 
the occasion for fighting or voting arises, and to direct the mode and 
means, are those of the state. And as the federal agents are not only 
citizens and subjects of the state, but are chosen for her, by her 
electors, to do her will, it is obviously in the nature of rebellion and 
treason, for them to oppose her will by force. If they do so, her 
voters must become her soldiers, to fight such perfidious agents; and 
defending her is defending themselves, and vindicating their own 
collective will, as well as preserving republican liberty, or the right 
of the people to organize themselves, and govern themselves. The 
Southern patriots acted in conformity with these principles, and hence 
w r ere not rebels and traitors. 

The Federal Compact vindicates them. — In a striking manner 
does the federal compact support these views, for it shows that the 
only parties to, and the only actors under it, are the states; and that 
these are the only sources of elective power — all the officials being 
citizens of states, elected or appointed by and for them. Indeed, 
these officials belong to states as much as ever slaves did to their 
owners; and their power or discretion is only that of their masters, 
and is strictly confined to the delegations in the compact. And the 
said compact acknowledges and declares that every citizen is a citizen of 


30 


A GENERAL VIEW. 


a state, or, in other words, that he is “bone of her bone and flesh of her 
flesh; ” owes allegiance to her alone; and is compellable to obey the 
federal agency solely by virtue of her command. Article IV., § 2, 
shows all citizens to be citizens of states; and Article II., § 1, shows 
that the President must be chosen by the states, while the delegations 
of states that compose Congress are elected and empowered solely by 
them. So that, in collegio, these officials, and the citizens and sub¬ 
jects of the states which they appoint to federal offices, constitute 
“the government of \i. e. belonging to] the United States,” or, in 
other words, the agency of self-government of the states which are 
united. The simple phrases of the constitution, “ the united states,” 
and “the states in this union,” should end controversy, as the states 
were pre-existent, and associated themselves to form the union. It is 
obvious, then, that the ultimate authority for the citizens to obey is 
the state, and not the government. 

The treason-clause itself supports this view. It declares that “ trea¬ 
son against The United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid and comfort.” 
The objects of this treason, then, are (not “ the government,” “ the 
nation,” or “ the people,” but) the states, or, to use Madison’s phrase, 
“ the people as composing thirteen sovereignties,” each of these sove¬ 
reignties having its own subjects, which owe allegiance to it, and are 
liable to the penalties of treason for violating that allegiance. And 
“the government” itself, created as it is by, and subject to, the su¬ 
preme law of the said states, may, by such “levying war against 
them,” commit treason against “them” Nay, more, it might with 
“ their ” army and navy become “ their enemies,” and subjugate 
“ them ” one after another to its central despotism, as it has already 
done to ten of “ them,” and as it may, on new pretexts, do to the rest. 
For a citizen to fight against his state is treason, while his fighting 
against “ the government,” by command of his state, is patriotic duty I 

Strong Corroborations. — The guilty perverters, and those who 
are to profit by centralization, hate these truths; but it will be 
seen that the constitution, the records of the country, and the con¬ 
temporaneous exposition of the fathers, are univocal in support of 
them. It is well here to give a slight foretaste. Madison wrote in 
Article 46 of the Federalist: “ The federal and state governments are, 
in fact, but different agents and trustees of the people. . . . The 
ultimate authority, wherever the derivative may be found, resides in 
the people alone.” In the Virginia Convention he explained that 
“ the people ” meant “ the people, as composing thirteen sovereignties.” 
In Article 40 of the Federalist he said: “ The states are regarded 
as distinct and independent sovereignties ... by the constitution 


REBELLIQN OR NOT? 


31 


proposed.” Nay, more, every idea herein expressed is to be found in 
the federal history, and the present constitutions, of New York and 
Massachusetts, as will hereafter be fully shown. These constitutions 
describe the citizen as a “member” and “citizen” of the state — the 
latter calling him a “ subject of this state; ” and they declare sove¬ 
reignty,” eo nomine, to be in the states respectively, and no “ powers ” 
to be out of them except entrusted ones; and their history is full of 
proofs that the federal government has no shadow of right to exist 
and hold jurisdiction within their borders, except by and under their 
sovereign will. 

As the confederates acted in precise accordance with these principles, 
it is absurd to call them rebels or traitors/ They, as individuals, 
obeyed themselves as states. This is self-government. It is republi¬ 
can freedom. Our states, then, which were the first dwelling-places 
of Liberty, are her last retreats, her final citadels, in her contests with 
power! 

Coercion of States is War against them. — By all the fathers, 
as will be hereafter shown, coercion of states by the government, was 
considered to be war. Those waging this, no matter what they are 
called, must be “enemies;” and if the citizens and subjects of the 
states attacked, wage this war, or give “ aid and comfort ” to others 
who do so, they commit treason. Not only was no provision made 
for the federal authorities to coerce the states (their only coercive au¬ 
thority affecting citizens, and being enforced by courts), but when 
the thoughtless proposition was made, in the federal convention, to 
give the general government this coercive power, it was unanimously 
rejected, Madison and Hamilton stigmatizing it as “visionary and fal¬ 
lacious,” and “ the maddest project ever devised.” They also declared 
that it was war, and was entirely incompatible with the plan of union, 
which was a voluntary association of states, the sole purpose of which 
was “ the security of the rights and the advancement of the interests ” 
of the associates. If the people, as states, possess original and abso¬ 
lute power, while the federal government has purely derivative, and 
necessarily subordinate authority, coercion of states by the said gov¬ 
ernment is not only unconstitutional, but, as the fathers declared, it 
is war against them, and is, in its very nature, treasonable. And 
the citizens “ levying ” the “ war,” or giving aid and comfort to the 
enemy, — if they are citizens of the state which is the object of the 
“war,”— directly violate their allegiance, and commit treason. 

The Nation is States — Governments are Creatures. — There 
is no doubt that all the architects of American constitutional liberty, 
and all the master workmen who built the temple, all the presidents 
who left any record down to 18§0, with, perhaps a single exception, 


32 


A GENERAL VIEW. 


and all the respectable statesmen, except a few who are more partk 
sans and advocates than statesmen, regarded the union as a federa¬ 
tion of self-governing sovereignties. 

These sovereignties ratified the constitutional compact separately, 
just as European sovereignties would ratify a treaty. They thereby 
created the federal government, and “ delegated ” to it the only power 
it ever held, or could hold. 

All ideas of state subordination are alike false, mischievous, and 
absurd. If thirteen sovereignties of Europe, in order to join their 
strength in defence, to lessen the trouble and cost of government, 
and to lighten the people’s taxes and other burdens, were to unite 
themselves, no one would contend that the common agency — that 
is, the congress of commissioners and ambassadors charged with the 
duties of such general government — could by any possibility become 
sovereign over the said sovereigns. Equally false and absurd it is to 
say that the government of our country can have sovereign or con¬ 
trolling authority over the states that created it. Governmental sove¬ 
reignty in a republic is a solecism. That cannot be sovereign which 
is subject to control and abolition. The government provided for in, 
is necessarily under and controlled by, the constitution. And this 
instrument is necessarily subject to the commonwealths of people 
that made and ordained it as their law. It follows, of course, that 
the states are sovereign, aud the government is their subject. This 
relation having been once established, only treasonable revolution can 
change it. 

The United States taught Davis and Lee Secession. — Andrew 
Johnson, Salmon P. Chase, Jefferson Davis, and Robert Lee were young 
men acquiring their political knowledge about the same time. They 
were taught that the states were (to use Hamilton’s phrase) the “essen¬ 
tial component parts ” of the federal system; or, in other words, that 
there was no nation, but states; that they, as their parents had been, 
were citizens of states, and owed allegiance thereto; and that they 
were entirely subject to the will and coercive authority of their re¬ 
spective states. Moreover, they knew from history that the federal 
convention, at the instance of Madison and Hamilton, excluded the 
power to coerce states from the federal compact, as an absurdity. 
And furthermore, the federal system had been in operation for about 
forty years, and yet state sovereignty, and the included and essential 
right of secession, were taken for granted. The only books in which 
they could study constitutional law laid down these doctrines as 
unquestionable. Said St. George Tucker, in his Commentaries, 
1802 : “Each is still a perfect state, still sovereign, still independent, 
and still capable, should the occasion require, to resume the exercise 



REBELLION OK NOT 1 


33 


of its functions as such, in the most unlimited extent.” Said William 
Rawle, in his Commentaries, 1829 : “The states, then, may wholly 
withdraw from the union; but while they continue, they must retain 
the character of representative republics. The secession of a state 
from the union depends on the will of the people of such state. The 
people alone, as we have already seen, hold the power to alter their 
constitution.” The above authors — one from the North and the 
other from the South — were among* the ablest of the early American 
jurists, and their statement was taken as truth. It was an essential 
and indisputable truth, and not a mere opinion. And it will be shown 
fully hereafter that this right of secession was considered by the 
fathers unquestionable — too much so, indeed, for discussion. The 
above works were text-books at West Point when Davis and Lee 
were cadets there. Was it not rather inconsistent for Uncle Samuel 
to think of hanging his pupils for practising the precepts he specially 
taught them ? 1 

Thus it was that these four distinguished personages were educated 
and impressed; and it is probable that the views of all of them re¬ 
mained unchanged during thirty years of their manhood till 1860 — 
the great epoch of change. Before that they would have deemed 
it a monstrous idea that the federal government could lawfully hang 
them because the state irresistibly carried them out of the union, 
and compelled them to defend her, while, at the same time, the state 
could have hung them if they had opposed her; and they could but 
believe that when the state repealed its ordinance of “ ratification,” 
it was no longer lawful for the citizens to obey the federal authorities, 
as ratification was the only cause of federal jurisdiction, and as the 
power of repeal was, by all law and common sense, exactly commen¬ 
surate with that of enactment. Would it not have sounded like a 
horrible romance for two of these men, after passing to the evening of 
life, in ardent devotion to these principles, to have had the power, and 
to have exercised it, of hanging the other two — also become old, and 
among the most distinguished men in the world — for honorable con¬ 
sistency to these same principles, and for obeying and defending their 
states, where were concentrated all the objects of a true heart’s devo¬ 
tion— those objects which noble and brave souls are wont to pre¬ 
fer to all the rest of earth, and to defend even to the last drop of 
blood — neighbors, friends, kindred, birthplace, hearthstones and al¬ 
tars, and the “ green graves of their sires ” 1 

1 They probably were at West Point in the administration of John Quincy Adams, 
who, as late as 1839, essayed to teach the whole American people that “ the people of 
each state . . . have a right to secede from the confederated union.” These are his 
very words! 


3 


CHAPTER VI. 


REBELLION OR NOT ? (CONTINUED.) 

PATRIOTISM IS LOVE OF ONE’S STATE. 

HE commonwealth, the cherishing mother, was belligerently at- 



JL tacked for exercising the same political will in withdrawing 
from, that she had done in adopting, the constitution, — attacked, too, 
by the subjects of herself and her sister sovereigns, who were tempo¬ 
rarily entrusted with federal power, and who had perverted the gov¬ 
ernment from its uses to do so. Then went forth her summons to all 
her sons to defend her with arms. “ Breathes there a man with soul 
so dead ” that he will not, in such a crisis, stand by and defend his 
family, neighbors, fellow-citizens, and his state, against all or any part 
of the outside world 1 He who is not for his state is against her, and 
in such an emergency he must obey her call, unless, like a recreant, 
he fly abroad, or, like a traitor, go outside, and turn the weapons of 
war against her breast, against his own kindred, against even the 
mother that bore him! As for me, if there must be conflict, I would 
rather sink with the commonwealth containing these dearest treasures 
of earth, than swim with the concentrated excellence of a thousand 
unions! Let me, for them, rather be broken on the wheel, than live 
for one moment with the infamy of deserting them in the hour of their 
need. I merely mention, but do not dishonor myself by contending 
for, so sacred a sentiment. Of every good man and true statesman, it 
is the very soul of his heart! On questions of patriotism and honor, 
“ reasoning is sometimes useless, and worse. It is too cold, and its 
processes are too slow. I feel the decision in my pulse. If it throws 
no light on the brain, it kindles a fire at the heart! * [Fisher Ames 
on the Jay Treaty, 1796.] 

The Patriotism the Fathers felt and taught. — The states, as sove¬ 
reign political bodies, existed before the constitution did. ’Each was 
made up of its members or citizens, these being bound in the social 
compact, as individuals, to obey the law of all. To protect themselves 
and preserve their blessings, was the object of the people in forming 
such state. Necessarily all the heart’s treasures are there, and these 


REBELLION OR NOT? (CONTINUED.) 


35 


are the “ blessings of liberty,” of which the federal preamble speaks. 
It was solely to increase the security of the same people and their 
“ blessings ” that the federal system was formed. The state, then, is 
the sole object of patriotic devotion, — of the heart’s allegiance , while 
the general government is simply entitled to obedience , because the 
state commands it. And honor here concurs with patriotism; for, 
while the latter is devotion to one’s country, and to the society that 
involves his membership and all his blessings, the former prompts him 
to comply with the social compact, and obey that society’s commands, 
and to defend her. Moreover, self-protection and duty to neighbors 
and fellow-citizens are accomplished by such obedience and defence. 

On this sacred subject listen to the voice of the fathers. Samuel 
Adams, of Massachusetts, called “ the sovereign authority of the state,” 
“ the palladium of the private and personal rights of the citizens.” 
[III. Life of Samuel Adams, 273.] John Dickinson, of Delaware, 
spoke of “ the independent sovereignty of the respective states ” as 
“ that justly darling object of American affections,” to which the 
federal agents are responsible. [II. Political Writings of Dickinson, 
99.] Oliver Ellsworth, of Connecticut, looked “for the preservation 
of his rights to the state governments.” “ His happiness depended on 
their existence, as much as did a new-born infant on its mother for 
nourishment.” [I. Ell. Deb. 474, v. Ibid. 268.] Said Alexander Ham¬ 
ilton, of New York, who considered “ the states ” to be the “ essential 
component parts of the new system: ” “We love our families more 
than our neighbors; we love our neighbors more than our countrymen 
in general. The human affections, like the solar heat, lose their in¬ 
tensity as they depart from the centre, and become languid in propor¬ 
tion to the expansion of the circle on which they act. On these 
principles, the attachment of the individual will be first and forever 
secured by the state governments.” [II. Ell. Deb. 354.] Many kindred 
expressions of the fathers might be here given, but, I presume, these 
will suffice. Not an opposing line can be found in all our history. 

The letter containing the sentiment of Dickinson, met the express 
and emphatic approval of the great and good Washington. Indeed, 
none dissented in those earlier and better days. All felt the holy 
flame. But since then politicians, perverters of constitutions, cor¬ 
rupters of public sentiment, and violators alike of sacred faith and 
sound principle have compelled the patriots and statesmen of the 
country to retire, and have, for selfish and partisan purposes, intro¬ 
duced a sort of idolatry, — a false worship, the poor pagans of which, 
in their fanaticism or moral obliquity, ignore the dear objects and 
institutions of home, and — like the pilgrims to Mecca or Lassa — 
wander off, and bow the knee, and submit the neck to their idol, which, 


36 


A GENERAL VIEW. 


in this case, is a mere political arrangement, —an agency or commis¬ 
sion, that is only entitled to regard and devotion just so far as it affords 
the designed safety to the aforesaid commonwealth and its associates, 
and all the rights which they involve, and gives to citizens a sense of 
present justice, and a satisfactory prospect for their future safety and 
happiness. 

Davis and Lee no Traitors. — Such was the teaching of the fathers 
as to patriotism and its object, and thus thought and acted Davis, 
Lee, and every other patriot who defended his state against federal 
attack. Each one knew of the old ordinance or law of his state, 
“ ratifying ” her federal compact, and commanding him to obey her 
federal government, and he had long obeyed it; but a later act re¬ 
pealed the former, and commanded him not to obey the said govern¬ 
ment ; and he knew the power to repeal to be precisely commensurate 
with that to enact. Why should the citizen heed and obey the state’s 
command, contained in her ordinance of ratification, and disobey her 
countermand 1 ? And how could there be rebellion and treason in 
obeying the authority which had habitually commanded him, and 
which he had habitually obeyed, — the authority of the self-governing 
body he belonged to 1 

Again, it was not alleged that Davis, Lee, or any other confederate 
chief, induced the states to secede, or that any of them seceded indi¬ 
vidually, and of their own motion, or, indeed, that they acted in the 
premises at all before secession had become un fait accompli, and hos¬ 
tilities had been commenced. Hence, the will , the act , and the crimi¬ 
nal intent, which must concur to make up the crime, could not be 
proved against them. 

Moreover, the only semblance of individual responsibility for these 
things, must have been in the members of the convention, by virtue 
of whose act all citizens (including Davis and Lee) were alienated 
from the union, made belligerent, and forced as well as commissioned, 
to fight the federal government. Ho one hinted at prosecuting 
them. 

Absurd Views of Sovereignty. — These conventions, endowed 
with plenary authority by the states, were unlimited in their power; 
had actual control of all citizens; made it treason to oppose seces¬ 
sion ; and were able, ready, and willing to hang too troublesome 
opponents. Delightful country to live in, where one authority can 
hang you for doing what another authority can hang you for not 
doing ! 

Such constitutional law is that of Bedlamites, and to enforce it 
'would soon depopulate the country. Yet, it is a legitimate sequence 
of the doctrines of the Massachusetts school, which have produced all 


REBELLION OR NOT ? (CONTINUED.) 


37 


our confused notions and loose talk about “ delegated sovereignty; ” 
“ divided sovereignty; ” “ two sovereignties; ” “ federal sovereignty 
and state sovereignty, each supreme in its own sphere“ the sove¬ 
reign powers distributed between the state and the general govern¬ 
ments ; ” “ the absolute supremacy of the government,” etc., etc. 
Never has there been, in the land now called “the United States of 
America,” a sovereign government, or a sovereign power in govern¬ 
ment, since the British ^ monarchy was displaced, in each and every 
colony, by a republic ; for ever since that, the sovereignty has neces¬ 
sarily been in the people; and it is now the fundamental principle, that 
the absolute right is inherent in the people, of instituting, altering, or 
abolishing government at will. There can be no republic, unless the 
people continue to have sovereignty, or the right of self-government. 
And as sovereignty is only predicable of organization, and as the peo¬ 
ple were never organized except in states, it is certain that the sove¬ 
reignty of our country must ever have dwelt in the said bodies of 
people, — each for herself being sovereign; and that the federal and 
state governments are both, as Madison declared, the agencies of this 
sovereignty, and necessarily subordinate to it. “The sovereignty of 
government ,” says Daniel Webster, “ is an idea belonging to the other 
side of the Atlantic. No such thing is known in North America .” 
[Speech of 1833.] 

States alone were Responsible for Secession and War. — How 

absurd it is to hold individual citizens responsible for secession, they 
having no more volition or power to stop the state than the Man in 
the Moon has to stop that orb! In Virginia, for instance, 150,000 
voters, including General Lee, sent delegates to a convention, which 
duly deliberated, and ultimately voted the state out of the union. As 
a citizen, he was compelled to obey, and finally defend the state. Op¬ 
position, after the convention had acted, would have been punishable 
enmity to his commonwealth, she having possession of him and his 
family and estate, and the fullest possible power of punishment. It 
must strike every one, then, that states having seceded as bodies, and 
ipso facto carried all the citizens out of the union, Davis, Lee, and 
others, cannot be held responsible as individuals for secession , or for the 
war which the said states waged against the federal government. 
Regardless of the condition, position, wishes, or acts of any citizen, 
the state took the deliberate and solemn step of seceding from the 
union, and the further step of federating with other states, which had 
seceded for the same causes and about the same time. The important 
act of secession was done in precisely the form, and with the solemni¬ 
ties observed by the original states, in their corporate act of “ assent¬ 
ing to ” and “ ratifying ” the instrument of union called the federal 


38 


A GENERAL VIEW. 


constitution, — that is to say, a convention of each state, elected and 
empowered by the sovereign people thereof, after due deliberation, 
declared the will of that political entity or “ moral person ” called 
“ the state ” to be — withdrawal of the consent and the “ delegated ” 
authority of said state from the federal constitution. This is seces¬ 
sion. Now, this commonwealth, which had actual possession of and 
jurisdiction over her members, and which no citizen could escape from 
without running away from home, estate, family, and everything dear, 
and becoming an outlaw or an emigrant, — this great repository 
of everything that mortal heart-strings entwine themselves around, 
having, of its own motion, withdrawn from the federation, Davis, 
Lee, or any other given citizen, was deported, as it were, from the 
union, having as little practical volition in the matter as an infant of 
emigrating parents. Nay, more, the state, with her hand actually upon 
him, exacted his submission and obedience under penalties which could 
have been enforced. And every one knows that such penalties did 
exist, and were enforced, and that malcontents were persecuted and 
driven out of their respective states. Whether a state, acting thus, did 
right or wrong, is not now the question ; citizens had no choice. And, 
furthermore, as to Mr. Davis, he did not vote for secession, and did 
not even favor the policy, though he had no doubt as to the right . 1 
If General Lee voted at all, he voted against secession. 

And States alone were Punishable. — He is dull that does not 
perceive, and uncandid that does not acknowledge, that, as it w r as the 
people as a commonwealth that seceded, and committed the acts of 
hostility complained of, the said political body was the proper subject 


1 Hon. 0. R. Singleton, who was for many years an influential member of the Fed¬ 
eral Congress from Mississippi, and who was subsequently in the Confederate Congress, 
wrote to the author substantially as follows: “ Near the close of 1860, a short time 
before South Carolina seceded, a conference of our delegation in Congress was held in 
Jackson, Miss., at the instance of Governor Pettus. The main question propounded fdr 
discussion was, whether, in case South Carolina seceded, Mississippi should do likewise, 
or wait and endeavor to secure the co-operation of the Southern States. Senator Jeffer¬ 
son Davis declared emphatically against separate state action, arguing that secession was 
an unquestionable right belonging to every state, but that it was not to be resorted to, 
until every other peaceful means of securing redress had been exhausted. He gave 
cogent reasons why Mississippi should not secede at that time, and expressed the hope 
that by some means the necessity of her seceding at all might be averted. His views 
were such that I, with others, thought him altogether behind the people. In conclusion, 
he said his allegiance was due to his state, and that her choice, as well as her fate, should 
be his.” 

A private letter from Mr. Davis himself to the author contains the following: “ A 
dissolution of the Union was with me qlways the last resort,” “ a very great, though not 
the greatest, of evils.” He considered that a state had necessarily an unlimited right of 
self-preservation, and could but be the final judge of the means; and that the right of 
secession was one of the absolute rights involved in the nature of sovereignty, —a right 
inherent, essential, and inalienable. 


REBELLION OR NOT? (CONTINUED.) 


39 


of punishment, if this was due; and that such body must be reached 
by the ultima ratio , or not at all; for, as was said by Burke, “ you 
cannot frame a bill of indictment against a people.” The will, inten¬ 
tion, and act, the ingredients of the offence charged, having been solely 
those of the state, it is common sense, and requires no argument, that 
the state alone is punishable. That the states fought, as such, against 
coercion, is a fact which the federal agency could no more prevent or 
undo, than it could change the principles of law applicable to such facts. 
And those judges — some of them “ pigmies perched on Alps ” **- 
wdiose wishes upon these subjects father their thoughts, simply achieve 
falsehood, and attract derision by attempting to decree the non-exist¬ 
ence of facts which even Deity could not destroy. It is simple and 
palpable untruth to say that there was no secession de facto, •*« no state 
fighting de facto against the federal agency, —^ no confederate govern¬ 
ment de facto . They might as well say there was no war de facto. 

The Atonement was Complete. — And, supposing the states to 
have been guilty, were they not punished enough 1 ? Multitudes of 
their children were slain, and their whole people long mourned in 
bitter anguish. They were reduced to unmitigated ruin and wretch¬ 
edness. And, worse than all, they lost completely their freedom of 
will, and were degraded and humiliated as were never states before. 
Russian serfs had more liberty and protection. And, monstrous as it 
may seem, “the iron entered the soul” of these stricken and sorrow¬ 
ing commonwealths insufficiently to sate the devilishness of some of 
their native sons; for these have ever since traitorously striven with 
enemies to subjugate the said republics, and put their proud hearts 
permanently under the iron rule of ignorance and brutality! 

The Jus Gentium protected Confederates. — The belligerent 
character of the Southern States, recognized as it was by foreign 
nations, and by the federal government, was, under the jus gentium , 
.an ample shield to their citizens, no matter whether the recent con¬ 
flict was a “civil war” or a “war between the states.” Says Yattel 
[pp. 425-7]: “A civil war breaks the bonds of society and govern¬ 
ment, or at least suspends their force and effect; it produces in the 
nation two independent parties, who consider each other as enemies, 
and acknowledge no common judge. . . . They stand, therefore, in 
precisely the same predicament as two nations who engage in a con¬ 
test, and, being unable to come to an agreement, have recourse to 
arms.” . . . “The obligation to observe the common laws of war 
toward each other is, therefore, absolute,—indispensably binding on 
both parties.” And as to Davis, Lee, and the officers and soldiers of 
such belligerent, their status of prisoners of war precluded all ques¬ 
tions of civil punishment. Indeed, by hesitating on such a subject, 


40 


A GENERAL VIEW. 


the federal agents courted the world’s contempt. And those who 
persisted in prosecuting Davis, either knew not the law of the case, 
or knowingly conspired to effect an unlawful purpose, — evincing that 
“ malice prepense ” which makes homicide murder. 

The Legitimate Conclusions. — It is obvious, then, that the con¬ 
federates observed the obligation of the social compact, — the highest 
of all political obligations in a republic, — and were true to their alle¬ 
giance, and to the requirements of patriotism, as well as to the instinct 
of self-preservation; and that, if in the history of the last decade of 
years, any rebels and traitors appear, they are those who, being citizens 
and subjects of states, used federal force in “ levying war against 
them,” or adhered to their enemies, “ giving them aid and comfort.” 
Those who wage war against states must be “their enemies and the 
citizens of states, who assist such enemies, must be traitors ! 


CHAPTER VII. 


THE ARCHITECTS’ IDEA OF THE EDIFICE. 

W AS our federal system several distinct and sovereign political 
bodies, self-united, and consequently superior to the voluntary 
bonds; or were these pre-existent bodies reduced from states to 
provinces, and consolidated into one commonwealth or nation 'l This 
is a simple inquiry of fact, as free from intrinsic difficulty as is such 
question concerning thirteen complete buildings, which the thirteen 
separate proprietors have united under a single all-sheltering roof, and 
provided with common corridors, walks, kitchen, back-yard, stable, 
pig-pen, hen-roost, and garden; or concerning thirteen pre-existent 
colleges, self-united in a university; or concerning thirteen neighbor¬ 
ing proprietors who establish a common agency for their common con¬ 
cerns ; or concerning thirteen associated commonwealths, whose “ U. 
S.” means either “united sisters ” or “united states.” In all such 
cases, the individuals are facts or entities, unchanged by association, 
and the thing formed by such association is technically named and 
described in legal and political terminology. 

Now, if Inigo Jones, Sir Christopher Wren, Brunei, Michael Angelo, 
or Cheops had contemporaneously spoken or written of the structure 
he was building, that it was a palace, a church, a pyramid, or a tun¬ 
nel, it would be laughable, if some one — whether architect or not — 
were to say, in after years, “No, it is a wharf,” “an obelisk,” “a 
bridge,” or “a steamship;” and if the latter were to argue on it, he 
would be derided, especially as the matter is one of fact, and not of 
interpretation, — of technical description, and not of argument. The 
object of this chapter is to present the positive and unambiguous 
statements of the great architects of the federal edifice, in direct con¬ 
trast with the utterances of Dane, Story, and Webster, and their per¬ 
verting followers. 

The Perversion to be Exposed. — In Chapter II., I showed, by 
quotations, that the fathers considered sovereignty to remain in the 
people, and the so-called governments to be mere agencies with dele¬ 
gated powers. Of course this proved the falsity of the assumed “ ab- 


42 


A GENERAL VIEW. 


solute supremacy” of “the government” over the states and their 
people. This chapter will prove the following cognate assertions to 
be not merely mistaken opinions, but entire, though perhaps uninten¬ 
tional, untruths. They are to be found in Daniel Webster’s great 
speech of 1833. He asserted that “contemporary history,” the Fed¬ 
eralist, “ the debates in the conventions of states,” and “ the writings 
of friends and foes,” all agreed that “ a change had been made , from a 
confederacy of states, to a different system that the constitution 
was made by “the people of the united states in the aggregate;” 
that therein they, the said people or nation, “ distributed their powers 
between their general governments and their several state govern¬ 
ments ; ” that this was their “ supreme law,” and that by it “ state 
sovereignty was effectually controlled; ” or, as the Philadelphia Con¬ 
vention more recently but as correctly worded it, — “ the govern¬ 
ment ” has “ absolute supremacy,” and the states are bound “ in 
allegiance ” thereto! It is plain that these are assertions of fact. 
They are either true or false. I shall prove them herein to be 
entirely and absurdly untrue. 

The Inquiry is one of Fact. — We are necessarily dealing with 
facts, or inferences therefrom, when we attempt to ascertain from the 
constitution and history, what the constitution and government under 
it are. When the states (or the people) acted, what, in point of fact, 
did they make 1 Was it a federation of states, or was it a single state, 
divided into counties or provinces 1 I shall duly prove herein the 
following facts: 1st. That the states existed, as separate and inde¬ 
pendent sovereign states, before the federal constitution. 2d. That 
they, as commonwealths, alone acted in establishing that constitution 
and the government under it. 3d. That the entire existence and 
powers of the said government are from and under them. 4th. That 
each and every federal functionary is a citizen and subject of a state, 
elected by, and acting for, such state. 5th. That our “united 
states,” or “ union of states,” — as these phrases indicate, — is a fed¬ 
eration of sovereignties. Now, these are facts or falsehoods. I shall 
prove them to be facts beyond controversy, and show that the federal 
constitution, the history of its formation, and all the acts and records 
of the states concur in proving them. This chapter is devoted to 
showing that the fathers unqualifiedly asserted the union to be a fed¬ 
eration of sovereign states; and that they considered the federal gov¬ 
ernment to be alike the creation, the agency, and the subject of the 
states. The italics, etc., will be mainly the author’s. 

Testimony of the Writers of the Federalist. — The statements 
of Hamilton, Madison, Jay, Washington, and Franklin are of more 
weight than all other authorities, on questions involving the origin 


THE ARCHITECTS’ IDEA OF THE EDIFICE. 


43 


and nature of the constitution; and they fully and precisely sup¬ 
port all the above assertions of fact. The three first mentioned 
are the great triumvirate, who wrote the series of papers in 1788, 
afterwards collected in a volume, and called the Federalist. This 
is universally considered to be the most authoritative of all com¬ 
mentaries on the federal constitution, as it was written by the very 
ablest of the framers, at the time that the states were in process of 
deciding upon it, and as it powerfully aided in overcoming the charges 
against, and the apprehensions concerning, the proposed system. I 
wish it 1 particularly noted that all the extracts contradict Messrs. 
Dane, Story, and Webster — whose dogmas are above stated in the 
language of the last — in the most positive manner; and they 
decisively refute the numerous Curtises, Mansfields, Jamesons, Park¬ 
ers, Brownsons, Greeleys, Raymonds, and other “ professors of consti¬ 
tutional law,” politicians, so-called statesmen, and newspaper editors, 
who nowadays habitually reiterate the assertions of the aforesaid great 
men, and voluminously sophisticate to support the same. 

Said Alexander Hamilton, in articles 9 and 85 of the Federalist: 
“ If the new plan be adopted, the union will still be, in fact and in 
theory, an association of states or a confederacy.” “Every constitu¬ 
tion for the united states must inevitably consist of a great variety of 
particulars, in which thirteen independent states are to be accommo¬ 
dated in their interests, or opinions of interest. . . . Hence the 
necessity of making such a system as will satisfy all the parties to the 
compact .” He also said the states are “ essential component parts of 
the union.” [II. Ell. Deb. 304.] In an address dated February 18, 
1789, to the people of New York, he said : “ The people of this state 
are the sovereigns of it.” The whole federal history, and the present 
constitution of New York, precisely quadrate with these principles. 

James Madison, in Articles 39 and 40 of the Federalist, said : 
“ Each state, in ratifying the constitution, is considered as a sovereign 
body , independent of all others, and only to be bound by its own vol¬ 
untary act. In this relation, then, the new constitution will be a 
federal, and not a national, constitution.” “ The states are regarded 
as distinct and independent sovereigns ... by the constitution pro¬ 
posed.” His speeches in the Virginia convention set forth the same 
views. [See III. Ell. Deb. 381, especially.] 

John Jay argued in favor of the states “ continuing united under 
one federal government, vested with sufficient powers for all general 
and national purposes; ” and opposed the idea of “ forming three or 
four confederacies instead of one.” He further said : “ Some time 
must yet elapse before all the states will have decided on the present 
plan.” This he characterized as a “ union of states.” I quote partly 


44 


A GENERAL VIEW. 


from the Federalist, and partly from his “ Address to the people of 
New York.” [I. Ell. Deb. 496.] In the last he described the general 
government as the agents and overseers for the people , by whom they 
are to be appointed.” 

So we find Mr. Webster’s citation of the Federalist to be without 
warrant, and his assertions to be decisively contradicted by that great 
authority. 

The Statements of Washington and Franklin. — General Wash¬ 
ington has left on record numerous evidences that he precisely agreed 
with the statesmen heretofore quoted, as well as with Wilson and 
Dickinson, to be quoted presently. He always assented to the idea 
that a confederacy of sovereign states was being formed. And the 
proof is direct, positive and abundant, that he recognized the states 
as sovereign parties to, and sovereign actors under, the new system. 
In a letter to Lafayette, dated June 17, 1788, he said : “I mentioned 
the accession of Maryland to the proposed government. . . . The ac¬ 
cession of one state more will complete the number (nine) needed to 
establish it.” 

To General Pinckney, June 28, 1788, he writes of the Virginia con¬ 
vention having adopted the constitution by 89 to 79; of the people 
of Alexandria rejoicing; of their enjoyment being heightened by the 
news that “New Hampshire had, on the 21st instant, acceded to the 
new confederacy by a majority of eleven voices; ” and of “ pouring a 
libation to the prosperity of the ten states that had actually adopted ” 
the constitution. 

To Governor Johnston, of North Carolina, June 19, 1789, he writes 
of “ the political relation which is to subsist hereafter between the 
state of North Carolina and the states now in union .” 

To Madison, Aug. 3, 1788, he writes of the time when 11 the states 
begin to act under the new form ; ” and to General Lincoln, Oct. 26, 
1788, that whoever shall be found to “enjoy the confidence of the 
states so far as to be elected Vice-President ” will be acceptable to him 
should he be President. 

It is well also to note here his endorsement of the expressions of 
James Wilson and John Dickinson, given below. 

These and numerous other expressions, not incompatible with his 
wish for a strong and efficient federal government, and a lasting 
union, settle beyond doubt Washington’s view that the states acceded 
to the federal system as parties to a compact, and were to act as sove¬ 
reigns “under the new form.” It will be shown in a subsequent 
chapter, by abundance of proof, that state sovereignty in the union 
was an essential part of Washington’s political creed. 

Dr. Franklin considered the constitution to be a compact between 


THE ARCHITECTS’ IDEA OE THE EDIFICE. 


45 


sovereign states; and he proposed, in the convention of 1787, the 
second branch of the federal congress, wherein “each state should 
have equal suffrage,” to secure “the sovereignties of the individual 
states ” and “their authority over their own citizens.” [V. Ell. Deb. 
266.] 

The Testimony of the Five next in Rank. — John Dickinson, 
Gouverneur Morris, James Wilson, Tench Coxe, and Samuel Adams, 
may be regarded as the five next in rank — if not equal — to those 
quoted, in efficiency and influence, and fully their peers in patriotism, 
ability, and zeal, in striving for “ a more perfect union,” and “ a more 
efficient government.” 

John Dickinson, who was at one time president of Delaware, and 
at another of Pennsylvania, was a leading statesman and political 
writer of that period, and a most influential member of the federal 
convention. In one of his remarkable letters, he characterizes the 
new political system as “ a confederacy of republics,” “ in which the 
sovereignty of each state is represented with equal suffrage in one 
legislative body, the people of each state ... in another, and the 
sovereignties and people . . . conjointly represented in a president.” 
[II. Writings of Dickinson, 107.] 

The views of Dickinson were those of Washington, as appears from 
a letter of the latter to John Vaughan, dated April 27, 1788. 

Gouverneur Morris, afterward minister to France, and United 
States senator from New York, the accomplished statesman to whom, 
in the federal convention, in which he was a delegate from Pennsyl¬ 
vania, was entrusted the rewriting of the constitution, who, having 
changed these words, “ We, the people of the states,” etc., as adopted 
by the convention, to “ We, the people of the united states,” must be 
supposed to know their meaning, declared, years afterward, that “ the 
constitution was a compact, not between individuals, but between 
political societies, .... each enjoying sovereign power, and, of course, 
equal rights.” [III. Life of G. Morris, p. 193.] 

James Wilson, of Pennsylvania, a member of both the federal and 
state conventions, a strenuous advocate for a strong government, and 
afterward one of the ablest of the federal supreme judges, called the 
general government “a federal body of our own creation,” using 
“ our ” to designate the people of Pennsylvania, whom he was address¬ 
ing, and whose ratification he was advocating; he stated the object of 
the convention of 1787, to be to induce the states “to confederate 
anev) on better principles” [V. Ell. Deb. 158]; and he said, in an 
address early in October, 1787, which was published generally in the 
papers of that day, “ Let it be remembered that the business of the 
federal convention was not local, but general; not limited to the views 


46 


A GENERAL VIEW. 


and establishments of a single state, but coextensive with the conti¬ 
nent, and comprehending the views and establishments of thirteen in¬ 
dependent sovereignties.” [II. Am. Museum, 379; Mass. Centinel, 
Oct. 24, 1787.] This very address was emphatically approved by Gen¬ 
eral Washington in a letter to David Stuart, dated October 17, 1787. 

Tench Coxe, of Pennsylvania, one of the leading statesmen, and 
most lucid political writers of that period, said that though the federal 
constitution was to be adopted by the people, “ yet it was to be done 
in their capacities as citizens of the several members of our confed¬ 
eracy. . . . Had the federal convention meant to exclude the idea of 
union, that is, of several and separate sovereignties joining in a con¬ 
federacy, they would have said, ‘We, the people of America/ for 
union necessarily involves the idea of competent states, which com¬ 
plete consolidation excludes. But the severalty of the states is fre¬ 
quently recognized in the most distinct manner, in the course of the 
constitution.” [III. Am. Museum, 160, 244.] 

Samuel Adams, a signer of the Declaration of Independence, than 
whom none was more patriotic and zealous, or more active, influential, 
and able in establishing the federal polity, declared, in the convention 
of Massachusetts, that the amendment proposed by her (and after¬ 
wards adopted by the states), that “ all powers not expressly delegated 
by the constitution were reserved to the several states,” was “conso¬ 
nant with the second article of the present confederation, that each 
state retains its sovereignty, freedom, and independence, and every 
power . . . not expressly delegated to the united states.” [II. Ell. 
Deb. p. 131.] And he wrote to Elbridge Gerry, in congress, that 
this amendment, which he urged the adoption of, would be “ a line 
drawn as clearly as may be, between the federal powers vested in 
Congress, and the distinct sovereignty of the several states , upon which 
the private and personal rights of the citizens depend.” [III. Life of 
Samuel Adams, Letter to R. H. Lee, July 4, 1789; also letter to El¬ 
bridge Gerry.] 

Another Decade of Witnesses. — The mass of evidence is already 
overwhelming, but for the purpose of grouping, for general use, the 
principal contemporaneous statements of what our system of govern¬ 
ment is, and likewise of showing how studious the expositors of the 
Massachusetts school must have been, to avoid citing and fairly pre¬ 
senting the real authorities on this momentous subject, I will add the 
testimony of ten more of 

“ The few, the immortal names 
That were not born to die.” 

Roger Sherman, one of the committee to draw up the Declaration 
of Independence, and a signer of the same, a member of the federal 


THE ARCHITECTS’ IDEA OF THE EDIFICE. 


47 


convention, and of the ratifying convention of Connecticut, declared 
that “ the government of the United States was instituted by a number 
of sovereign states for the better security of their rights, and the 
advancement of their interests.” 1 

Would not the Shermans of to-day find this Revolutionary worthy 
and his compatriots the best guides? Why turn the people away 
from old beacons, to follow will-o’-the-wisps 1 

Oliver Ellsworth, who was afterward chief-justice of the United 
States, spoke of the union as a “ confederation,” and said : “ the con¬ 
stitution does not attempt to coerce sovereign bodies — states in their 
political capacity,” but only provides for legal coercion of individual 
citizens. [II. Ell. Deb. 197.] 

Chancellor Pendleton, the president of the ratifying convention 
of Virginia, spoke of the people of Virginia as “ the fountain of all 
power,” and said : “ If we [Virginia] find it to our interest to be inti¬ 
mately connected with the other twelve states , to establish one common 
government, and bind in one ligament the strength of the thirteen states , 
we shall find it necessary to delegate powers proportionate to that end ; 
for the delegation of adequate powers in this government is no less 
necessary than in our state government.” [III. Ell. Deb. 297.] 

John Marshall, afterwards the celebrated chief-justice of the 
United States, said, in the same convention, in reference to the fear 
expressed by Henry and Mason, that “ a state might be called at the 
bar of the federal court,” and judicial coercion be attempted, “it is 
not rational to suppose that the sovereign power should be dragged 
before a court.” [Ibid. 555.] 

James Iredell, one of the chief statesmen of North Carolina, af¬ 
terwards on the supreme bench of the union, expressed similar views, 
and said he thought the federal senate “necessary to preserve com¬ 
pletely the sovereignty of the states.” [IV. Ell. Deb. 133.] 

Fisher Ames, the great orator of Massachusetts, afterwards her 
senator in Congress, and one of her most eminent statesmen, said in 
her convention : “ The senators represent the sovereignty of the states 
. . . in the qualities of ambassadors.” [II. Ell. Deb. 46.] 

Theophilus Parsons, “the celebrated chief-justice ” of Massachu¬ 
setts, one of the ablest and most influential members of her conven¬ 
tion, said that the senate was designed “ to preserve the sovereignty 
of the states .” [See Memoirs of Parsons, p. 98.] 

Christopher Gore, also one of her leading statesmen, said, on the 
same occasion : “ The senate represents the sovereignty of the states' 
[II. Ell. Deb. 18.] 

1 The citation for this is misplaced; but in VI. Life and Times of John Adams, 440 
will be found the same statement of Sherman’s views, with but slight verbal changes. 


48 


A GENERAL VIEW. 


Governor James Bowdoin said, in the same convention, in advo¬ 
cacy of the new system, that “ without a confederacy, the several states , 
being distinct sovereignties, . . . would determine the disputes that 
might arise, ... by the law of nature, which is the right of the 
strongest.” [II. Ell. Deb. 129.] 

George Cabot, another statesman of high rank in Massachusetts, 
said, in his argument for the constitution : “ The senate is a represen¬ 
tation of the sovereignty of the individual states' ’ [Ibid. 26 ; see also 
Memoirs of Parsons.] 

Only a Federation of Sovereignties was Possible. — Many more 
such extracts might be presented, but these will suffice; for, among 
the leading fathers, there was no dissent. Indeed, there could be, on 
this subject, no difference of opinion, since the states were equal. No 
authority was above them; sovereignty belonged to each common¬ 
wealth as an essential part of her nature ; every organic law expressed 
or implied it; and the solemn league between the states declared that 
each retained her sovereignty. This all comprehensive right must 
have remained in her till she completed the work, and, of course, 
afterwards. The established status of these commonwealths, and the 
law of their beings, absolutely controlled the action of the fathers. 
Moreover, these were members, citizens, subjects, and servants of their 
respective states, and had no authority whatever to bind them, and, 
a fortiori, none to impair their integrity and sovereignty. The said 
states associated, and bound themselves by name, as distinct and com¬ 
plete political bodies [Art. I. § 2, and Art. VII.], declared their compact 
of association to be established u between the states so \i.e. by their 
respective conventions] ratifying the same ” [Art. VII.], and provided 
for governing themselves in federal matters, by electing and empower¬ 
ing their own citizens and subjects, as their servants and agents, to 
perform governmental duties. [Art. I. §§ 2, 3 ; Art. II. § 1.] 

I show, then, in this chapter, not only that the fathers declared the 
union to be a federation of “sovereignties,” but that equal, distinct, 
and sovereign states could not combine for general government by any 
other system. And we shall see that all federal history supports me. 
The views of the great architects will be hereinafter given more at 
length. 

The very authors of the great movement for “ a more perfect union,” 
and “ a more efficient general government,” were the men that made 
the above utterances. They were the very men who laboriously 
matured each and all of the provisions of the constitution; who rep¬ 
resented the people, knew their will, and tried to do it; whose every 
explanation was corroborated, and position sustained, by the final 
sovereign acts of their respective states, as will be quoted and shown; 


THE ARCHITECTS’ IDEA OF THE EDIFICE. 


49 


and who were all selected afterward by the people to carry the organ¬ 
ized system into effect. Not a molehill can be built up opposite to 
this mountain of testimony. 

Professors of Fact, as well as of Law, wanted. — In conclusion 
of this chapter, I must express the hope that certain of our professors 
of constitutional law T , will become professors of constitutional facts, and 
in future editions of the “ History of the Constitution,” the “ Con¬ 
stitutional Convention,” the “ Political Grammar,” etc., quote and 
comment on the foregoing, and numerous other kindred passages which 
the records of the country contain, and which must appear in any true 
history or unsophistical exposition of our federal system ; also that our 
lawyers, editors, politicians, and so-called statesmen may learn from 
the above and subsequent extracts, what few of them seem to know, 
namely, that state sovereignty is not a mere deduction, made by Jef¬ 
ferson and others, after the federal compact was formed, and expressed 
originally in the Resolutions of 1798 and 1799, but is a great and 
indestructible fact or entity , which was recognized by all the fathers as 
essential and vital to each commonwealth of the federalized states, and 
as an integral part of such state’s being. Jefferson only bore the rela¬ 
tion to state sovereignty, that the advocate does to the pre-existent 
truth he utters or expounds. 


4 


CHAPTER VIII. 


THE SUBJECT IS EACTS. 

I N an exposition of our general polity, we have mainly to do with 
pre-existent sovereign states, and their actions, as facts; with their 
general constitution as a fact; with testimonies as to its character, 
derived from public records and historic statements ; with contempo¬ 
raneous explanations of meanings and understandings by statesmen 
and states; and, finally, with technical definitions by publicists. 
These are all matters of fact, and our system — fully evidenced by 
them — is itself a stupendous fact or entity to be described. 

Interpretation comes after Establishment. — After the constitu¬ 
tion was established and completed as a political entity, and was 
susceptible of being characterized and technically named, the con¬ 
gress of the states, on the 13th of September, 1788, recommended 
to the several commonwealths that they should proceed to appoint 
electors of President, and elect their delegations to the congress; 
and that, on the 4th March , 1789, “the Congress, together with 
the President, should , without delay , proceed to execute this con¬ 
stitution.” 

When they “ proceeded to execute ” their duties, these sworn officials, 
upon finding some word, phrase, sentence, or clause that was ambigu¬ 
ous or otherwise doubtful, reached for the first time the field of inter¬ 
pretation. But this could have nothing to do with the pre-established 
system in which they were to work. A law under a monarchy, aris¬ 
tocracy, or republic, would require one and the same construction to 
determine its meaning, if couched in the same language; and the 
ascertaining of duty or rights, from doubtful words or phrases, by 
functionaries, is a very different thing from describing and character¬ 
izing the political system or form of government. The essentials and 
the character of the system were fixed and passed in the beginning, 
as facts or truths; but interpretation will go on to the last syllable of 
language, and of recorded time. 

So-called Schools of Interpretation.— While commenting on 
this subject, I will use as a text, an erroneous statement of Hon. 


THE SUBJECT IS FACTS. 


51 


George T. Curtis, especially as he is now considered the best repre¬ 
sentative — if not the chief teacher, of the so-called “ Massachusetts 
School.” In a letter dated July 25th, 1868, is the following passage : 
“ There have always been, in this country, two schools of interpre¬ 
tation, taking opposite views of the constitution of the united 
states,” etc. 

I shall now try to show that this assertion is incorrect, and likely 
to mislead. .Whether the constitution is a compact or not; and 
whether it makes a federation of the states, or nationalizes them into 
one state — are questions of fact, to be settled by the instrument and 
historical evidences. Look at the map, and reflect a moment upon 
the states there represented ; we see communities, — each thoroughly 
organized and capacitated to do every possible act of a nation. They 
are political entities, — established facts, as palpable and distinct as 
the stones of a pavement or the pillars of a colonnade. We find, in 
the historical records, that each state, at the very time that all were 
framing, discussing, and ratifying the constitution, was sovereign, and 
was so described by herself in her organic law, and by all the states 
in the federal compact, just as George III. had done by treaty. We 
find also, in the same records, that each of the states, in ratifying the 
constitution, did it in her own time, place, and convention, and by 
her own absolute vote, —the first state ratifying December 7, 1787, 
and the last, May 20, 1790. And, lastly, we find from Article VII. 
that the constitution was to be “ established between the states so 
\i. e. by conventions] ratifying.” These are facts which even Deity 
cannot destroy or impair; and they, according to all publicists, pre¬ 
cisely fill up the definition of a league or union of states, just as, ac¬ 
cording to all lawyers, certain facts fill the definition of murder or 
larceny. 1 

Now, a class of persons in our country have persistently asserted 
these facts in political writings, speeches, state papers, commentaries, 
party platforms, and law books. They recognize as so many absolute 
political entities the united republics of America, — in other words, 
“the United States of America,” — this being the descriptive phrase 
of the constitution, the title of the federation. They simply repeat 
the truth. They neither form nor belong to any “school of in¬ 
terpretation.” 

But after forty years had passed over our federal system, during 

1 Jeremy Bentham in his “Fragment on Government” [p. 12] says that anyone 
who speaks or writes on the subject of law, takes on himself two characters, that of ex¬ 
positor and that of censor. “ It belongs to the former to explain what he supposes the 
law is ; to the latter to tell us what he thinks it ought to be. The former, therefore, is 
principally occupied in stating, or in inquiring after, facts, the latter in discussing 
reasons.” 


52 


A GENERAL VIEW. 


which all its friends held the idea of associated states, and the kin¬ 
dred idea that the people were sovereign commonwealths which, in 
self-government, separately attended to all home affairs, and jointly 
to a few general and all foreign affairs, there arose and grew, under 
the auspices of Nathan Dane, Joseph Story, and Daniel Webster, 
what is called “the Massachusetts school.” 

The Chief Expounders. — Dane was an original enemy of the 
constitution, and he probably wished his strictures to pass as exposi¬ 
tions : Story, broad-minded, thought a grand nation, and power 
among nations, might, could, would, and should grow from construc¬ 
tion, and he was in the potential mood; and, moreover, his construc¬ 
tion meant fabrication : while Webster, as the advocate, aimed at 
the triumph and pecuniary advantage of his state and section; and 
directed his great intellect and luminous logic to the sophistical dis¬ 
proof of his own principles; viz., that “ the original parties to the 
constitution were the thirteen confederated states,” and that their 
constitutional obligations “rest on compact and plighted faith.” 
These are his very words, which, when he approached his final ac¬ 
count, he substantially reiterated, — but alas ! too late; for he had 
then produced those “ public convictions,” as Mr. Curtis calls them, 
which brought war and woe ! As to Mr. Curtis, he seems merely to 
repeat and amplify what the others have written or said. 

The “ School ” was one of Perversion. — Even this was not a 
“ school of interpretation,” as Mr. Curtis would fain have us believe, 
for its dogmas were not the result of interpretation, but were asser¬ 
tions of fact which were true or false, and which, at the time the 
constitution was being established “ between the states ratifying the 
same,” were charged upon the federal system by its enemies, and dis¬ 
proved by its friends. 

Daniel Webster taught the said dogmas in 1830-33, substantially 
as follows : that the constitution was made by the people of all the 
states, acting as one state or nation; that they therein divided the 
powers they chose to grant, between their general and local govern¬ 
ments ; that their said constitution, as far as it went, “ effectually con¬ 
trolled state sovereignty,” — thus reducing states to provinces, or 
counties, but “expresslyreserving” to them, such “political rights 
and powers ” as they — the said nation — wished them to possess; and 
that the right of determining the extent of its powers, belonged to the 
government itself. Story’s teachings were similar. Lincoln substan¬ 
tially repeated these ideas in 1861, as did the Philadelphia convention 
of 1866, and the “ New York World,” in its issue of June 3d, 1868 ! 

All these expounders assert that the constitution contains these 
ideas, though in fact no words of it express or imply them. Nor can 


THE SUBJECT IS FACTS. 


53 


they be evolved by construction. They were, as facts, true or untrue, 
when the constitution was discussed by the states, and, a fortiori , 
when it was ratified by nine of them, and thereby established. 
Hence the proof of the action of the commonwealths, and the solemn 
statements of the fathers, herein faithfully given and to be presented, 
are of infinite importance, for they end doubt, and the pseudo “ school 
of interpretation,” at the same time. 

In 1787—88 these very ideas were unavailingly urged as charges 
against the federal system by Lowndes, Henry, Martin, Yates, Lan¬ 
sing, and other enemies thereof; and but for the disproof of them by 
Hamilton, Madison, Wilson, Dickinson and others, the said system 
would have been overwhelmingly defeated. The constitution was 
fully established, and it formed a federation or not, in July, 1788. 
Such a thing as practical interpretation could not then arise, for it 
was thereafter that the government provided for had to be elected, 
organized, installed, and set to work under the constitution; and it 
was only after these things were done that, in congress and the 
courts, interpretations to find the intent of specific articles or clauses 
could be had or were needed. Hence the peculiar views concerning 
our polity which distinguish “ the Massachusetts school,” do not en¬ 
title it to be called a “school of interpretation.” It asserts as a fact 
that our federal instrument constitutes a state or nation , when the 
truth is, it constitutes a union of states or federation. Should we not 
call it a school of fiction, or school of perversion 1 

“ School” is a Misnomer, except in the Sense of Flock. — Nor 
do the professed exegetical efforts of the faculty on leading questions 
seem to entitle them to be called a “ school,” in any sense, for 

1st. They assert, as a fact, that the united states are a national 
unity or state, because the preamble says: “We, the people of the 
United States, do ordain and establish this constitution; ” when the 
phrase itself disproves the assertion, necessitating, as it does, pre¬ 
existent commonwealths, which, being independent, must voluntarily 
have come together, as thirteen persons would, for a common purpose, 
without the associates losing their individuality. This alone is de¬ 
cisive ; and the phrases that signify “union of states” and “citizens 
of states; ” the fact that the states are named in the instrument; the 
seventh and characterizing article; and the numerous historical proofs 
of the error of the assertion, need not be adduced. 2d. They 
assert that the article declaring the constitution to be “ the supreme 
law of the land,” makes the government which springs from the law, 
and is subject to the law, supreme over the law-maker. Stating their 
contention is the reductio ad absurdum. 3d. They say that while 
the “ constitution ” created a national sovereignty for certain “ speci- 


54 


A GENERAL VIEW. 


fled purposes, it expressly reserved to the states all other political 
V rights and powers.” [World, June 3, 1868; Lincoln, 1861.] As to 
the “ national sovereignty,” see the last point. A government in a 
republic cannot be a sovereignty at all. It can only have delegated 
powers, and be the creature and subordinate of the delegators. It 
(the constitution) reserves nothing; but the states that made it, “re¬ 
served ” all they did not delegate. 4th. They speak of the “ consti¬ 
tution prohibiting” states from “laying duties,” “keeping troops 
without consent of Congress,” “ coining money,” etc., etc. [See Mr. 
Curtis’s letter to The' Round Table, July 25,1868]; whereas these 
so-called prohibitions are self-imposed restrictions upon the states, 
which the constitution merely evidences. 

These few of the numerous “ interpretations ” show what sort of 
a school the so-called interpreters of Massachusetts keep. If the 
word simply implies gregariousness, its propriety cannot be questioned, 
for the gathering and following have been large. But, aside from 
interest, the only reason for the following is best given by Jeremy 
Bentham, in his “Fragment on Government” [page 25]. 

“ Under the sanction of a great name, every string of words, how¬ 
ever unmeaning, will have a certain currency. Reputation adds 
weight to sentiments which, had they stood alone, might have drawn 
nothing, perhaps, but contempt. . . . Wonderful is that influence 
which is gained over young minds by the man who, on account of 
whatever class of merit, is esteemed in the character of a preceptor. 
Those who have derived, or fancy they have derived, knowledge from 
what he knows, or appears to know, will naturally be for judging as 
he judges, reasoning as he reasons, approving as he approves, and con¬ 
demning as he condemns.” 

It is surprising, and indeed humiliating, to see how dependent and 
gregarious the most of our learned commentators, critics, editors, and 
statesmen are, even in matters of high and momentous duty, requir¬ 
ing independent and conscientious judgment. All must follow some 
bell. For instance, in our day we have numerous expositors getting 
an idea or prejudice from Webster or Story, and never looking at the 
basis of it, but spending the rest of their lives in obtaining suste¬ 
nance for it, and passing by, in the groping and culling search, innu¬ 
merable shining, aye, almost dazzling gems of counter-truth, without 
noticing them. 

A Passing Tribute to the Old Bay State. — In proceeding to show 
that the whole ground of controversy between the federal and the na¬ 
tional theories, is covered by averments of fact, or inferences there¬ 
from ; and that, as the one theory is plain truth, and the other plain 
untruth, the American people should stop the controversy at once, by 


THE SUBJECT IS FACTS. 


55 


branding as falsifiers one or the other of the two sets of dogmatists; 
it is but fair and dutiful to distinguish between the commonwealth of 
Massachusetts, and those unworthy sons who call themselves or are 
called “ the Massachusetts school ” of interpretation, while they sap 
her statehood, pervert her faith, and tarnish her name. 

In history she is the most conspicuous of the authors, vindicators, 
and exemplars of American institutional liberty. Her principles, 
firmly established and indelibly written by herself, are set forth in 
the preceding chapters ; and the dogmas of the so-called “ Massachu¬ 
setts school ” not only find no sanction in her early and genuine his¬ 
tory, but are decisively refuted thereby. And though her record 
may now be suppressed, her wisdom silenced, and her patriotism 
lulled to sleep, by sophists and scheming politicians, yet her heart 
is the heart of humanity, whose impulses are pure and just; and 
it will finally prove to be as true to liberty as the needle is to the 
pole : — 

“Compulsion, from its destined course, 

The magnet may awhile detain ; 

But, when no more withheld by force, 

It trembles to its north again.’’ 

Averments of Fact — Skeleton of Argument. — The following 
propositions will show the subject to be exclusively one of fact, while 
they exhibit the scope of the present work. The nerves, sinews, veins, 
flesh and blood, will grow upon the skeleton in the subsequent pages, 
and, perhaps, make of it “a form of life and light.” 

THE REPUBLIC. 

1. The state is the people thereof: they are the state. 

2. $To other organization of self-governing people exists. 

3. Such societies alone are “ the people of the united states.” 

4. “ All political power is inherent ” in such societies. 

5. So the state constitutions declare or imply. 

6. Hence each state is sovereign, i. e. has the “ all-power.” 

7. It is a completely organized, self-governing body. 

8. The people are not sovereign as individuals. 

9. Sovereignty is only predicable of the organized people. 

10. Societal organization was completed, in forming the state. 

11. Hence, the alleged national society was impossible. 

12. All the states have agreed that each is sovereign. 

13. That is to say, each has the right of self-government. 

14. The voting citizens hold and wield the governing power. 

15. The authority of voters is an endowment by the state. 

16. With it the voters express the sovereign will. 

17. Such state is the republic, or self-governing people. 

18. It is the only possible dwelling of sovereign mind. 


56 


A GENERAL VIEW. 


19. Making constitutions and governing, are functional acts. 

20. The state’s mind is intact after, as before such action. 

THE REPUBLIC OF REPUBLICS. 

21. The states in union are the republic of republics. 

22. If nation there be, they are the integers— not fractions. 

23. Hamilton called them the “ essential component parts.” 

24. Joel Barlow called the states in union federalized states. 

25. The fathers all similarly characterized the system. 

26. It answers to Montesquieu’s “republic of republics.” 

27. Its members are moral or corporate, not natural persons. 

28. The general sovereignty is that of the states allied. 

29. They severally delegate “ powers,” not sovereignty. 

30. Their constitution only contains delegations. 

31. The convention of’87 called it a “delegation” and a “trust.” 

32. So Washington wrote, by their “ unanimous order.” 

33. The constitution itself fully sustains the averment. 

34. All not delegated are reserved— kept out of the pact. 

35. These delegations cannot belong to “trustees” or “ agents.” 

36. Such powers must belong to the delegating states. 

37. Hence, the federal government cannot be sovereign. 

38. Hence, too, each ratifying and delegating state is so. 

39. Each state ratified by exerting her mind and will. 

40. This alone subjected her people to the constitution. 

41. Hence, 13 states “ordained and established” the compact. 

CITIZENSHIP AND ALLEGIANCE. 

42. Citizens remained “ citizens of different states.” 

43. So the federal compact declares and implies. 

44. The state alone has authority to govern her citizens. 

45. The federal powers they obey are delegated by her. 

46. Protection and allegiance are reciprocal obligations. 

47. Protection is due from the society to the member. 

48. Allegiance is due from the said citizen to society. 

49. The tie of allegiance, then, is the social compact. 

50. By this compact, the will of all wholly governs each. 

51. This is the sole cohesive force of a republic. 

52. All citizens are members and subjects of states. 

53. The transfer of citizenship would dissolve the state. 

54. Citizenship or allegiance was never transferred. 

55. President Jackson greatly erred in saying it was. 

TREASON. 

56. Treason is a citizen’s breach of allegiance to his sovereign. 

57. The society is the sovereign, and object of the crime. 

58. “Treason against the U. S.” is “levying war against THEM.” 


THE SUBJECT IS FACTS. 


57 


59. It is not “ levying war against ” the nation or government. 

60. Nor is it “ levying war against ” the union or association. 

61. But it is “levying war against” the described “states.” 

62. A co-action of state wills established and defined the crime. 

63. The power to try and to punish it, is delegated by each state. 

64. Obviously the crime is against the guilty citizen’s state. 

65. Davis and Lee were true to their respective states. 

66. Hence they were patriots and not traitors. 

True Patriotism is Fidelity to the Commonwealth. — True pat¬ 
riotism must be devotion and fidelity to one’s commonwealth. Her 
institutes or laws, whether federal or domestic, must be obeyed by 
him, because she commands it. The state, voluntarily joined in de¬ 
fining the crime of treason against the United States, and punishing 
it. If one of them reverse her will, and disjoin herself, the duty and 
the crime cease, for cessante ratione legis cessat lex. 

Indignant expounder! hurl no bolt at me! for Hamilton is my 
shield : “ The state governments,” said he, “ will, in all possible con¬ 
tingencies, afford complete security against invasions of the public 
liberty by national authority. In a confederacy, the people, without 
exaggeration, may be said to be entirely masters of their own fate.’* 
[Federalist, 28.] 

Government is Mental and Functional Action. — The only mind 
exercised was that of the commonwealth. Such acts are natural, 
being just what society was formed for, and being just as little calcu¬ 
lated to destroy, or, in any wise impair, the “moral person,” i. e. the 
body-politic, as the functional action of the brain, heart, lungs, or 
stomach is to do so to the natural person. A republican common¬ 
wealth’s acts of self-government, whether in making constitutions of 
government, or acting under them, are entirely functional, and not 
self-destructive or revolutionary, and the mistake of supposing the 
states were resolved into a new state, by the voluntary and separate 
action of the thirteen, is alike pitiable and pernicious. If the “pub¬ 
lic conviction ” that this was done, was as Mr. Curtis claims, brought 
about by Daniel Webster, that great man is to be credited with having 
produced our “ abomination of desolation,” — the war against state¬ 
hood, resulting in the destruction of our glorious commonwealths ! 

The Minds of the Political Bodies still live. — As the estab¬ 
lishment of the federal system was an act of mind, the acting 
wills must have lasted through the work they began, because they 
had to complete it, and afterwards cause obedience to it; and be¬ 
cause the future duty of amendment, by the same wills, was con¬ 
templated and provided for: and accordingly it has been since done 
several times. 


58 


A GENERAL VIEW. 


The same mental organism now exists in working order, with com¬ 
plete individuality, and separate mind and will. The states are not 
nationalized or consolidated into one. Nor are they in any respect 
changed either in form or substance. They still are the “ union of 
states ,” 1 or “ united states : v but it remains to be seen whether 
their wills are enslaved — deprived of volition ! — whether the union, 
once voluntary — is now constrained! whether the once u free, sove¬ 
reign and independent states” are shackled!—pinned together by 
bayonets! — whether, in fine, the once proud commonwealths of 
America are remanded to their provincialism! and brought under 
the most heartless and unconscionable of all despotisms, — a cor¬ 
porate monarchy! 

1 As “the constitution of the united states” contains the phrases, “united states,” 
“union of states,” and “citizens of states,” or their equivalents, I will hereafter, for 
convenience, quote them thus — the following actual phrases being my justification for 
the last two of them: — 

“The several states . . . within this union.” [Art. I. § 2.] “New states may be 
admitted . . . into this union.” [Art. IV. § 3.] “Every state in this union.” [Art. 
IV. § 4.] “ The citizens of each state.” [Art. IV. § 2.] “ Citizens of another state.” 

[Art. III. § 2.] “ Citizens of different states.” [Ibid.] “ Citizens of the same state.” 

[Ibid.] “ A state or the citizens thereof.” [Ibid.] “ Citizens of another state.” 
[Amendment XI.] 


CHAPTER IX. 


CONCLUSIVE EVIDENCE. 

T O quote Massachusetts and New York, on the vital points pro¬ 
pounded herein, will astonish and instruct the most of our 
people, while it will show an ample and solid basis for the foregoing 
theory, and mark a decisive step in the great argument. And their 
august testimony is all the more fit and forcible, from their being the 
main sources of perverting exposition, or so-called interpretation. 

As the people, in the functional performance of self-government, 
must act as they are organized and capacitated to do, and govern 
through agents, the security of their statehood and freedom must 
mainly be the honor and ability of their functionaries. And “the 
constitution,” as Daniel Webster said, “ lays its hand on individual 
conscience and individual duty,” for its “preservation,” requiring 
solemn oaths from its officials ; so that one of them who “ acts outside 
of the constitution ,” and uses powers not delegated, i.e. powers retained 
or kept, by the states, out of the constitution, is a perjured usurper, 
as well as a traitor. 

So, as to the preservation of the union by the commonwealths. 
They must observe and act on the terms, through oath-bound agents 
or representatives; and the sacred faith of each is pledged; so that, 
if the terms be violated, we have not only official perjury, but an ex¬ 
hibition of Punic faith, which should subject the violators to outlawry 
under the jus gentium. 

In a most studied report on the Missouri question, made to the 
people of Boston, in 1819, by Daniel Webster and others, as a com¬ 
mittee [see Appendix E], he says that “ the only parties to the consti¬ 
tution, contemplated by it originally, were the thirteen confederated 
states; ” and that the terms of their union “ rest on compact and 
plighted faith.” The above expressions show that the hold, and 
perhaps the only hold, on rulers and states, is on their morality, honor, 
good faith and conscience, — these, in fact, from the nature of the 
case, being the main securities of either republican or federal liberty. 


60 


A GENERAL VIEW. 


Now let Freedom “lay her hand on the individual conscience, and 
the individual duty ” of Massachusetts and New York, for a statement 
by them of their record as to what our polity is. 

The Testimony of Massachusetts. — Assuming her to be what all 
publicists say a state is — “a moral person;” crediting her with 
mind and moral sense; and appealing to her honor, plighted faith 
and conscience, she is respectfully asked what status and condition a 
state has in the union 1 She answers with her solemn record, made 
up most deliberately before the world, and under the eye of God, in 
the terms now to be given. 

In 1780, her people, through a convention, and under the inspira¬ 
tion of Freedom, made the declarations now to be quoted; and, de 7 
cennially, ever since, they have re-declared the same great truths, — the 
very institutes of Freedom ! — all to be found in her present consti¬ 
tution, which supports, in all respects, as will be seen, the idea of the 
absolute sovereignty of the states in the union, association, or federa¬ 
tion, — whichever the system may be called. 

The Object of Government. — “ The end of the institution, main¬ 
tenance and administration of government, is to secure the existence 
of the body-politic, to protect it, and to furnish the individuals who 
compose it, with the power of enjoying, in safety and tranquillity, 
their natural rights, and the blessings of life.” 

The Social Compact. — “ The body-politic is formed by a volun¬ 
tary asssociation of individuals. It is a'social compact, by which 
the whole people covenants with each citizen, and each citizen with 
the whole people, that all shall be governed by certain laws for the 
common good.” 

“We, therefore, the people of Massachusetts,” acknowledging the 
goodness of God, “in affording us” “an opportunity” “of entering 
into an original, explicit, and solemn compact with each other, and of 
forming a new constitution of civil government for ourselves and pos¬ 
terity, ... do agree upon, ordain, and establish the following dec¬ 
laration of rights, and frame of government, as the constitution of 
the commonwealth of Massachusetts.” 

A constituting or establishing of the body-politic, more formal and 
explicit, if possible, is the following, in part second of the constitution : 

“ The people inhabiting the territory formerly called the province 
of Massachusetts Bay, do hereby solemnly and mutually agree with 
each other, to form themselves into a free, sovereign, and independent 
body-politic , or state, by the name of — the commonwealth of Massa¬ 
chusetts.” 

This great exemplar of liberty here declares most emphatically, that 
the phrases “ the people,” “ the body-politic,” “ the state,” and “ the 


CONCLUSIVE EVIDENCE. 


61 


commonwealth,” mean the same, as to political existence, and ca¬ 
pacity for self-government. It should be ever kept in mind that 
“ the people ” are “ the state,” and “ the state ” “ the people.” 

No Sovereignty in Government—all Functionaries Agents.— 
“ All power residing originally in the people, and being derived from 
them, the several magistrates and officers of government, vested with 
authority, whether legislative, executive, or judicial, are their substi¬ 
tutes and agents , and are at all times accountable to them.” 

The State can change Government at Will. — “ Government is 
instituted for the common good : for the protection, safety, prosperity 
and happiness of the people. Therefore the people alone have an in¬ 
contestable, inalienable , and indefeasible right to institute government, 
and to reform, alter, or totally change the same, when their protec¬ 
tion, safety, prosperity, and happiness require it.” 

The State to remain Sovereign over Government. — Upon declar¬ 
ing the above, she seemed to stop — deeply reflect — gather strength 
of will and expression — and imperially declare ; as if to prevent for¬ 
ever the possibility of agency swelling to sovereignty, and rising above 
the states that establish it: “ that the people of this commonwealth 
have the sole and exclusive right of governing themselves as a free, 
sovereign, and independent state, and do, and forever hereafter shall, 
exercise and enjoy every power, jurisdiction, and right, which is not, 
or may not hereafter be, by them, expressly delegated to the united 
states of America, in Congress assembled.” [The above italics are the 
author’s.] 

In conformity with this declaration that “ the people of this com¬ 
monwealth ” have the “ exclusive right of governing themselves ” “ as 
a sovereign state ; ” and that they “ will forever exercise ” every power 
which is not “ by them delegated ” to the associated states; Massachu¬ 
setts most carefully puts her whole adult male population on a war 
footing; and commands her governor to use them, to “kill, slay, 
and destroy,” all such persons (including of course federal ones) 
as “shall attempt the destruction, invasion, detriment, or annoyance 
of this commonwealth; ” she exacts an oath of allegiance from 
all officials, military or other; and punishes a violation of the same 
(i. e. treason), with death ! — all of which will be fully shown further 
along. 

New York testifies idem sonans. — In 1776, she, as a provincial 
body-politic, joined twelve others, in declaring their independence. 
Each was represented by her own deputies, and they were thus able 
to co-act in congress. Whatever was done, was by a concurrence of 
individual wills. 

In 1777, her first constitution was established, containing the fol- 


62 


A GENERAL VIEW. 


lowing absolute declarations of sovereign right — principles essential 
to liberty, and the same yesterday, to-day, and forever! 

Considering herself to be the supplanter of British sovereignty, she 
declared as follows : “All power whatever therein, [i i . e. in the state of 
New York] hath reverted to the people thereof; and this convention 
hath, by their suffrages and free choice, been appointed and authorized 
to institute and establish a government, . . . calculated to secure the 
rights and liberties of the good people of this state. . . . 

“1st. This convention, therefore, in the name, and by the authority 
of the good people of this state, doth ordain, determine, and declare : 
that “no authority shall, on any pretence whatever, be exercised over 
the people or members of this state, but such as shall be derived from ,, 
or granted by them.” 

She began the century recently closed, with this declaration; and, 
though her fundamental law has been several times reconstructed, 
the declaration stands now ! and it will stand forever ! for no author¬ 
ity but hers is ever to be exercised on her soil! 

She further declares, in her present organic law of government, that 
“the sovereignty and jurisdiction of this state extend to all places 
within the boundary thereof, . . . but the extent of such jurisdiction, 
over places that have been or may be ceded to the united states, shall 
be qualified by the terms of such cession.” [Const. N. Y.] 1 

She also declares it to be “ the duty of the Governor, and all sub¬ 
ordinate officers, to maintain and defend her sovereignty and jurisdic¬ 
tion.” [N. Y. Rev. Stat., Ch. L, Tit. 2.] 

She also declares as follows, concerning the 

Lordship of the Soil, or Eminent Domain. — “ The people of this 

state, in their right of sovereignty , are deemed to possess the original 
and ultimate property in, and to, all lands within the jurisdiction of 
this state; and all lands, the title of which shall fail from a defect of 
heirs, shall revert or escheat to the people.” [Const. N. Y., Art. I., 
Sect. 2.] 

Virginia expresses it as follows : 

“All escheats, penalties, and forfeitures, heretofore going to the 
king, shall go to the commonwealth” [Const. Va.]; and Judge Kent 
states the American doctrine to be, that “ the state steps in place of 
the feudal lord, by virtue of its sovereignty , as the original and ulti¬ 
mate proprietor of all the lands within its jurisdiction.” [All the 
above italics are mine.] 

1 On this subject, Massachusetts declares as follows: “The sovereignty and jurisdic¬ 
tion of the commonwealth, extend to all places within the boundaries thereof; subject 
only to such rights of concurrent jurisdiction, as have been, or may be granted over any 
places ceded by the commonwealth to the united states.” [See Rev. Stat. of Mass., ed. 
1836, p. 56.] 


CONCLUSIVE EVIDENCE. 


63 


Federal Sites. — The treatment of Uncle Sam by these high and 
mighty potentates, is quite consistent with their imperial words. 

Massachusetts and New York grant to the united states (not to the 
nation or government, but to the said states) sites for arsenals, forts, 
navy-yards, light-houses, post-offices, etc., relying on their solemnly 
plighted faith , not only to guaranty and secure the states, in being 
and acting as republics, or absolutely self-governing peoples, but to 
use the said sites solely for the defence “ and welfare ” of said states. 
The sites of forts Warren, Lafayette, Delaware, Monroe, Moultrie, and 
others, are acquired and held by the united states, from the respective 
states in which they are situated, on conditions such as the following, 
in the act ceding the use and jurisdiction of the site of the Brooklyn 
Navy-yard : “ The united states are to retain such use and jurisdic¬ 
tion, so long as said tract shall be applied to the defence and safety of 
the city and port of New York, and no longer [“defence and safety 
of the said state, and no longer,” are the words in the Watervleit 
arsenal cession]. . . . But the jurisdiction hereby ceded, and the ex¬ 
emption from taxation herein granted, shall continue, in respect to 
said property, and to each portion thereof, so long as the same shall 
remain the property of the united states, and be used for the purposes 
aforesaid, and no longer” [see also statutes of Mass., June 17, 1800; 
June 20, 1816; April 23, 1847; April 21, 1848; May 4, 1853: Stat. 
Pa., April 18, 1795; Feb. 1, 1796: Stat. Va., March 1, 1821; and 
Stat. C., December 19, 1805.] There are over 50 of these acts in 
the statutes of Massachusetts, and over 150 in those of New York. 

Summing up the Testimony. — Let us now analyze and reduce to 
averments of fact, the statement of these august witnesses. They 
show conclusively: 

1. That “ all power is inherent in the people ” of the state ; and that 
the phrases, the “sovereign and independent body-politic,” “the 
commonwealth,” “ the state,” and “ the people,” are all used in one 
and the same declaration as synonymous. And, to preclude doubt, 
Massachusetts redeclares her sovereignty with still greater emphasis, 
as follows : “ The people of this commonwealth have the sole and exclu¬ 
sive right of governing themselves as a free, sovereign , and independent 
state.” 

2. That no power ever goes out of the state, except by delegation ; 
that all power belongs to the state as much after delegation as before; 
and that delegated powers must necessarily be used, for the state, by 
her “ substitutes and agents.” 

3. That all the powers in the general government are delegated by, 
and derived from, the “ sovereign and independent bodies-politic,” — 
that is to say, “ the commonwealths ” or “ the states ” — “ the people ” 


€4 


A GENERAL VIEW. 


having no 'political existence , or capacity for political action , except as 
such “ bodies-politic,” or “ states.” Said Daniel Webster : “ No such 
thing as sovereignty of government,” “is known in North America.” 
“With us, all power is with the people.” [Speech of 1833.] 

4. That the said “people,” “body-politic,” “commonwealth,” or 
“state” have an “inalienable and indefeasible right to institute, 
reform, alter, or totally change government,” whenever they think 
proper. 

5. That no authority can be exercised in the state but that derived 
from the people thereof, i. e. from “the sovereign body-politic,” “the 
commonwealth,” “ the state.” 

The Constitution is Law in a State by her Will. — It follows, as 
will be shown more fully hereafter, that the general government or its 
functionaries enter Massachusetts or New York solely by her permis¬ 
sion ; that they command or control persons or things in her territory 
solely for her, and by virtue of her authority; and that “ the united 
states ” (not the government, except as an agent or instrument of the 
united states) hold use and jurisdiction of sites for forts, navy-yards, 
etc. from her, for the sole purpose of her and her sisters’ defence and 
safety, under her grant, and subject to her conditions. 

The fact of state supremacy will be more plain, if we note and 
weigh the only act which makes the federal constitution law in Massa¬ 
chusetts. These are .the ordaining words : “ The convention, in behalf 
of the people of the commonwealth of Massachusetts, do assent to, and 
ratify the constitution.” New York, and all the other original states, 
ordained the supreme law in the same way. 

The truth is, the states are sovereign, and all the institutions and 
rulers of the union are subordinate. The states are, as Hamilton said, 
the “ essential component parts of the union ” of states, or “ the united 
states; ” and the federal government is merely the creation, the in¬ 
strument, and the subject of the states, — the declaration of the Phila¬ 
delphia Convention of 1866, that “the Government” has “absolute 
supremacy,” and that both people and states are alike allegiant to it, 
being hardly entitled to respect or refutation. Still less worthy of 
notice — though of far higher origin — is that queer figment or fanciful 
notion of Webster and Curtis, as to the social compact forming the 
people of the united states into a state. 

Exposure of the Fallacy of a New Social Compact. — Nay, more, 
this theory is so egregious a mistake, that ridicule is only disarmed 
by pity, while argument turns away with scorn. The very object of 
forming men into society, and giving them a collective capacity to act, 
is government. Hence, in sending deputies to devise, in holding con¬ 
ventions to consider and ratify, and in electing agents to administer, 


CONCLUSIVE EVIDENCE. 


65 


the general constitution, the states were exercising the God-given 
right of self-government, and doing only natural and functional acts; 
and were not dissolving themselves, or yielding their sovereignty. 
Accordingly, we find no hint in all American history, tending to show 
that the people, or the states, were in 1787 and 1788, forming society; 
while all history, and all the records of the country show that they 
were establishing government for preformed and pre-existent societies. 
So much for the Webster and Curtis social compact, and involuntary 
union! 

Again, these societies had, by successful revolt, changed themselves 
from provinces to “ free, sovereign, and independent states ; ” that is to 
say, they had gained the right of self-government, that peculiar thing 
that alone distinguishes a state from a province or county. These 
states had this right in 1787, and then voluntarily acted with and 
according to it, each with her own separate will, in her own separate 
time, and through her own separate convention, ratifying , and, as to 
herself, ordaining the constitution. When did each state lose the 
great right referred to 3 When did the voluntary union become an 
involuntary one ? 

Politically the People exist and act as a State. — The states, 
and their absolute individuality, being stubborn facts, that will not 
“down” at any “bidding” whatever, no one can argue correctly on 
these subjects, who does not start with a conception of them as 
“moral persons,” each with mind and will, and only capacitated to 
act on political matters, as such persons , and through such minds. 

Says Vattel (p. 14) : “A state or political society is a moral per¬ 
son, inasmuch as it has an understanding and a will, of which it makes 
use for the conduct of its affairs, and is capable of obligations and 
rights.” Again (p. 1): “The authority of all over each member, 
essentially belongs to the body-politic or state.” Blackstone and 
Montesquieu teach the same idea. 

Said William H. Seward, at Auburn, N. Y., October 20, 1865 : 
“ This absolute existence of the states, which constitute the republic, 
is the most palpable of all the facts which the American statesman 
has to deal with. . . . The states were, before the American union 
was. . . . Our federal republic forever must exist, through, not the 
creation, but the combination, of these several free, self-existing, stub¬ 
born states. . . . They are living, growing, majestic trees, whose roots 
are widely spread and interlaced within the soil, and whose shade 
covers the earth.” 

As will be seen, all history and all the fathers show that the com¬ 
monwealths must be kept in mind, in all reasoning on political sub¬ 
jects, as “ the most palpable of all the facts the American statesman 

5 


66 


A GENERAL VIEW. 


has to deal with.” They must be kept in mind as “ the parties to 
the compact; ” the members of “ the confederacy; ” the “ essential 
component parts of the union ; ” and “ the sovereigns ” of their respec¬ 
tive territories. These are the phrases of that other great son of 
New York, Alexander Hamilton, used in reference to the present 
system. 

The Stumbling-block of the “Expounders.” — The Massachusetts 
school are loth to admit “ the people ” and “ the sovereign body-politic 
or state ” to be one and the same, and that the collective people in 
question form a “ moral person,” and must act as such in government. 
They seem to think that the existence and action of distinct and free 
political minds, make the union “ a rope of sand; ” and they are 
unwilling to admit that the said association depends on moral cohesive 
force, instead of coercive power. They simply fail to “rise to the 
height of the great argument ” of God and our fathers, — that the 
people are capable of self-government, and that the union is one of 
pre-existent and absolutely distinct commonwealths, uniting them¬ 
selves voluntarily, on the grounds alone of amity and mutual in¬ 
terest. 

The “ Sacred Ties ” according to Washington. — George Wash¬ 
ington, in his letter to R. H. Lee, August 22, 1785, says : “ There is 
nothing which binds one country or state to another, but interest: 
without this cement, the Western inhabitants can have no predilec¬ 
tion for us, and a commercial connection is the only tie we can have 
upon them.” 

Two years afterwards, viz., July 19, 1787, he wrote to the same : 
“ Till you get low down the Ohio, I conceive that it would be to the 
interest of the inhabitants thereof to bring their produce to our ports; 
and sure I am, there is no other tie by which they will long form a 
link in the chain of federal union.” 

About five years afterward, and about three years after the federal 
system had gone into effect under his administration, viz., August 26, 
1792, he wrote to Hamilton, counselling mutual forbearance, concilia¬ 
tion, and accommodation, “ and such healing measures as may restore 
harmony to the discordant members of the union.” “ Without these,” 
continued he, “ I do not see how the union of the states can much 
longer be preserved.” 

These extracts, and the whole Farewell Address, promulgated in 1796, 
show his idea to have been, that amicable feeling and mutual interest 
were principal among “ the sacred ties that bind together the various 
parts.” After showing the sentimental cohesion, he speaks thus : “ But 
these considerations, however powerfully they address themselves to 
your sensibilities [italics mine], are greatly outweighed by those which 


CONCLUSIVE EVIDENCE. 


67 


apply more immediately to your interest; ” and then he goes on to 
enumerate the many grounds of interest, which should motive the 
people to preserve the union. [See Farewell Address.] 

It is well here to say, that in all Washington’s political writings, 
the pith of which will be found in two subsequent chapters [Part III. 
Chs. X. and XI.], he nowhere hints at that coercive preservation of the 
union, which the expounders of to-day claim to be the duty of “ the 
government,” but which the framers of the constitution carefully con¬ 
sidered, severely reprobated, and rigidly excluded, as will hereafter be 
most conclusively shown. 

The “ Sacred Ties” according to Jackson and Burke. — Instead 
of saying, as by some he is quoted, “ The union must and shall be 
preserved,” Andrew Jackson says : “ But the constitution cannot be 
maintained, nor the union preserved, in opposition to public feeling, 
by the mere exertion of the coercive powers of government: the foun¬ 
dations must be laid on the affections of the people, in the security it 
gives to life, liberty, and property in every quarter of the country, 
and in the fraternal attachments which the citizens of the several 
states bear to one another as members of one political family.” 

Edmund Burke’s grand voice sounded consonantly and appositely 
in the British Parliament: “ My hold on the colonies,” said he, “ is 
the close affection that grows from common names, from kindred 
blood, from similar privileges and equal protection. These are ties 
which, though light as air, are strong as iron. Let the colonies 
always keep the idea of their civil rights associated with your govern- 
ment, they will cling and grapple to you, and no power under heaven 
will be able to tear them from your allegiance.” But, continued he, 
“the cement is gone, the cohesion is loosened, and everything has¬ 
tens to decay and dissolution,” if they are deprived of their privileges 
and subjected to wrong and oppression. 

The Union is only Voluntary Engagements. —-These great men 
do but express the truth, that none but voluntary ties of union can 
exist among associate republics; for, when involuntariness supervenes, 
the republic ceases. In the case before us, the associates guaranty to 
each commonwealth that she shall continue to be and act as a repub¬ 
lic, i.e . govern herself. [Const. Art. IV. § 4.] If she be kept tied to 
anything, be it tree, wall, or union, against her will, she is not free, 
or republican. 

If the safety and interest of the parties be secured and justice done 
to them in the union, contentment and amity, the elements of “ do¬ 
mestic tranquillity,” are sure to follow. And, if the American repub¬ 
lics remain as they were, — the primum mobile of all government, 
ruling collectively in federal matters, and severally in local; if the idea 


68 


A GENERAL VIEW. 


of an involuntary union be abandoned; if mutual good-will and 
mutual justice prevail, so that the commonwealths desire to remain 
united; and, finally, if the general governing authority faithfully do 
that, and no more, which the functionaries of it are all sworn to do, — 
the “ essential component parts of the union,” as Hamilton called 
them, will never wish to be sundered, but will remain united by ties 
which are “ strong as iron,” “ though light as air ! ” 

“ Union and Liberty, now and forever! ” — In the beginning of 
this second century of “ union and liberty,” — that is, of federal lib¬ 
erty, — we should take a new — or rather retake the old — departure. 
Liberty dwells, and must ever dwell, not in the league or union, and not 
in the constitution of government, but — in the people as republics; 
and the people, collectively and individually, must feel, use, and enjoy it. 
This is what God and our fathers intended; what Massachusetts and 
Hew York so imperially declare; and what, under their lead, we 
should patriotically strive for, now, henceforth, and forever! 

Let us preserve the Commonwealths. — Self-preservation is alike 
the first law of nature, and the first duty of those to whom the 
Almighty has given a sentient existence. Men have an individual 
being, and, in society, a corporate one, — both of God. And when 
the commonwealth exercises its mind, or, in the last resort, its physi¬ 
cal force, in preserving itself and its freedom, it is acting precisely 
according to the above law and duty, and the members are bound by 
the social compact to obey her. They thus individually and collec¬ 
tively exercise the right, and discharge the duty of self-preservation; 
and at this ever-to-be-remembered epoch, the highest moral obliga¬ 
tion devolves on Massachusetts, to say nothing of New York, to take 
the lead again, and promulgate her sacred and glorious principles of 
liberty. And henceforth, every new state, or old one, requiring a 
new constitution, should copy that of Massachusetts, as to social com¬ 
pact, bill of rights, and even form of government. Expounders can 
then no longer dispute, hide, or pervert the truth. 

Let all declare the true principles of Liberty. — And let all the 
commonwealths determine to be such, from this time forward; and 
let them respectively declare in the language of the great exemplar — 
the Old Bay State : — 

That the people of this commonwealth have the sole and exclusive 
right of governing themselves as a free, sovereign, and independent state ; 
and they will forever exercise every power and right, which may not be 
by them expressly delegated to the united states, assembled in congress; 

That all power, residing originally in the people, and being derived 
from them, all officers of government are their substitutes and agents , 
and are at all times accountable to them; 


CONCLUSIVE EVIDENCE. 


69 


And, finally, that the people of the commonwealth alone, have an in¬ 
alienable and indefeasible right to institute government , and to reform, 
alter, or totally change the same, whenever they think their safety and 
happiness require it. 

The States are .now provincialized. — Before July 4, 1776, the 
nascent states were provinces, their wills being controlled, and they 
kept in dominion, by a power exterior to themselves, and over their 
wills. At that time, they became “ free, sovereign, and independent ” 
parties to a voluntary and a happy union. In 1876, we found them 
again subject to an exterior will, in all matters deemed, by that will, 
necessary and proper. The mind and power that ruled at Washing¬ 
ton, claimed and enforced “ absolute supremacy.” Sovereign wills in 
states had existed and acted in forming the present union : they then 
existed no more! In what, said Lincoln, are our states better than 
counties? Did he realize that they were subjugated; and that “ the 
government ” had changed itself from agency to sovereignty — “ the very 
way” said Burke — and it cannot be quoted too often — “ in which 
all the free magistracies of the world have been perverted from their 
purposes 1 ” 

Invocation. — People of the united states! let us begin the new 
century by close adherence to the union of our fathers ; the union of 
sovereign and independent commonwealths; the voluntary union that 
Lee and Davis, and Seward and Chase, were educated to believe in, 
and revere ! Let the fasces be always lowered before the supreme 
sovereignty of the people. Spurn the idea of u absolute supremacy of 
government ” in a republic ! Ever regard your general constitution of 
it, as federal, and based on the commonwealths of people, — the rock 
of original power. If you leave it on the shifting sands, “ great will 
be the fall of it! ” and in the ensuing night and sorrow of despotism, 
you will come 

“To think — as the damned haply think of the heaven 
They once had in their reach — that you might have been free.” 

May God preserve and bless the American commonwealths, and 
may their motto ever be : “ union and liberty ! now and forever ! 
ONE AND INSEPARABLE ! ” 







PART II, 


FEDERALIZATION. 


The two most consoling principles which political experience has yet brought 
to light, are those on which we have founded our constitutions. I mean repre¬ 
sentative democracy and the federalizing of states. 


Joel Barlow. 


















PART II. 


FEDERALIZATION. 


CHAPTER I. 

THE ACTORS —THEIR MOTIVES AND PURPOSES. 

T HE thirteen states or commonwealths of America that united their 
strength to achieve independence; and afterwards federated to 
establish a general government, and secure their statehood and free¬ 
dom; were so many “moral persons” (as Vattel calls them), distinct 
in existence — distinct in body— and distinct in mind and will. Each 
had its own name, geography, people, social organization, and political 
authority. 

When, in 1787, these bodies proposed to associate themselves in a 
“ more perfect union ” and to establish a “ more efficient general gov¬ 
ernment,” it was perfectly obvious that they could only act, in doing 
so, through their respective wills, as they had done in their previous 
association. 

By their successful revolt, they became sovereigns in place of Great 
Britain, ipso facto , changing themselves from provinces to states, or 
commonwealths. / 

These bodies of people were organized and capacitated to act, polit¬ 
ically, as individuals. Each had its own mind, with the character¬ 
istics and modes of action that the mind of the natural person has; 
to wit, perceptive faculties, reasoning powers, judgment and will,— 
a convention being the organ for ascertaining and expressing such 
will. This governing will must survive its making of a constitution ; 
as otherwise it cannot command and enforce obedience on its sub¬ 
jects; or reform, change, or abolish its work, if subsequent experience 
show it to be defective, harmful, or unpromotive of the desired ends. 
These political beings act, each with its own mind, and, of right, 
consider and decide all governmental questions ; for each is a republic 
or self-governing people, which must provide for its own defence and 
welfare, and settle for itself, directly or indirectly, all questions of 
interest, policy, or principle, as well as of right and duty. 



74 


FEDERALIZATION. 


At the epoch mentioned, these states were considering the subject 
of a permanent federal system, which should “ provide for the com¬ 
mon defence, and promote the general welfare ” of themselves, — that 
is to say, of “ the people ” that constituted them. 

In September, 1786, in pursuance of a call upon the states, “com¬ 
missioners” from the commonwealths of New York, New Jersey, Penn¬ 
sylvania, Delaware, and Virginia, met at Annapolis, to consider a 
commercial policy for the union; but as only five of the thirteen 
states appeared, they contented themselves with a recommendation, 
that a convention of commissioners of states should be held at Phila¬ 
delphia, in May, 1787, “ to devise such further provisions, as shall . . . 
render the constitution of the federal government adequate to the exigen¬ 
cies of the union .” [I. Ell. Deb. 116.] 

In appendix C hereof, will be found extracts from all the commis¬ 
sions of the deputies of the states to the convention of 1787, showing 
the universal idea to be, the “ uniting of the sentiments and councils 
of all the states,” in changing the old “federal constitution,” as it was 
called, into such new one as “ will be adequate to the exigencies of the 
federal government, and the preservation of the union,” when “agreed 
to in congress, and confirmed by the several states.” [For full cre¬ 
dentials see I. Ell. Deb. 126.] 

Statehood to remain Intact. — If will be seen that, throughout 
all the deliberations up to the adoption, the prevailing aim and under¬ 
standing was, that the states should keep their statehood and sove¬ 
reignty intact, and should accomplish their purpose by delegating, but 
not surrendering or alienating powers. 

William Patterson, of New Jersey, made a statement in the con¬ 
vention of 1787, that shows most clearly the principle that finally 
prevailed. After saying that all the commissions of the delegates 
required them to revise, alter, and amend the articles of union, he 
proceeded as follows : “ Can we, on this ground, form a national gov¬ 
ernment 1 I fancy not. Our commissions give a complexion to the 
business; and we cannot suppose that when we exceed the bounds of 
our duty, the people will approve our proceedings. We are met here 
as the deputies of thirteen independent sovereign states, for federal 
purposes. Can we consolidate their sovereignty, and form one nation, 
and annihilate the sovereignties of our states, who have sent us here 
for other purposes 1 . . . 

V But it is said that this national government is to act on individuals, 
and not on states; and cannot a federal government be. so framed as 
to operate in the same wayl It surely may. I, therefore, declare 
that I never will consent to such a system. Myself or my state will 
never submit to tyranny or despotism.” [I. Ell. Deb. 403.] 


THE ACTORS —THEIR MOTIVES AND PURPOSES. 75 


We shall see, in our progress, that both in the convention, and 
before the people, the federalists completely overcame the nationalists. 

We shall see statehood completely preserved — the pre-existent un¬ 
changed states being named in the compact, and provided for, to act, 
with their respective wills, in government, and future amendment. 

We shall see that the constitution was to be ratified, and thereby 
ordained and established, by separate but associating commonwealths, 
acting through their respective conventions; all history and the sol¬ 
emn records proving this action (and no other) to have given life and 
vigor to the constitution. 

We shall see that the goverijment was to be endowed with power 
solely by the states, not to act on and over the states, but on their 
citizens and subjects; that coercion of states was considered as war, 
and prohibited; and that the new plan was intended to be merely 
“ the federal government of these states,” and the “ delegation ” of 
an “extensive trust” — as Washington wrote to the congress, “by 
unanimous order of the convention,” which had laboriously devised 
the plan, and must be supposed to have thoroughly understood their 
own work. [See I. Ell. Deb. 305.] 

In the next ensuing chapters, however, my purpose is to show that 
the states in 1788, federalized themselves, “to form a more perfect 
union ” of states than their previous one ; and to institute a stronger 
and “more efficient federal government” than the one of 1778; that 
they are the be-all and the end-all of the system; and that the second 
union is a more pronounced confederacy than the first. 

The Chief Aims of the States. — They desired to be united, 
because they were neighbors, on the same expanse of territory; were 
of common origin, and similar political organization; held the same 
principles and views of government; and finally had the same needs, 
— in considerable part, as to home, and altogether, as to foreign policy. 

Their leading aims and ideas were : 

1. “To unite in one ligament the strength of thirteen states,” — 
to use the words of Chancellor Pendleton, in the Virginia ratifying 
convention. 

2. To enable themselves to act as one nation, or power, in foreign 
affairs. 

3. For economy, convenience, and good neighborhood, they sought 
to establish an agency for governmental affairs that were common to 
all. 

4. To close up as many as they could of possible points of contro¬ 
versy among themselves, as neighboring powers or states. Those 
settled ceased to be, while those unsettled remained international. 

5. That each state should exclusively govern in home affairs. 


76 


FEDERALIZATION. 


6. That statehood and the sovereignty of the states, should be 
preserved unqualifiedly and forever! 

The Principal Changes contemplated were the following: 

1. A complete government was to be provided for in the new plan ; 
while the old was only a legislature, without co-ordinate executive 
and judicial institutions, and without any independent power to effect¬ 
uate its so-called laws. 1 

2. The new government was to operate directly on the individual 
subjects, having authority delegated, by the sovereigns, for that pur¬ 
pose, while the old could neither coerce states nor people. 

3. The unlimited power to levy and collect taxes, for providing for 
the common defence, etc., was to be in the new, but was not in the 
old government. 

4. Commerce, the currency, and some other subjects of less though 
great importance, were to be put in the new project, though they 
were not under the old government. 

These were the most essential changes; and they were devised with 
great deliberation, study, and care, by the most eminent and able 
citizens, subjects, and deputies of the aforesaid commonwealths. And 
to give the new institution a higher and more majestic sanction, than 
that of the old, the communities of people themselves , through their con¬ 
ventions, and not their ordinary agencies, the legislatures, were to 
adopt it, so as to have the fabric “ rest on the solid basis of the con¬ 
sent of the people [Federalist, 22.] 

In fine, the states federalized , and did not nationalize themselves. 
The former would necessarily be done by equal sovereigns, while the 
latter would make them counties or provinces of a nation, remanding 
them to their British condition. 

All history shows that to each state the question was put: Will 
you adopt this instrument, and become a party 1 Thirteen finally 
answered yes — each expressing her own absolutely uncontrolled will 
— by ratifying through their respective conventions; and became the 
thirteen united states — thirteen united sisters — thirteen united 

1 The power of congress to make laws on the subjects confided to it, implied, to some 
extent, the power of providing executive and judicial authority to effectuate them; but 
the agents provided for, were necessarily the agents of an agency; and the states neither 
promptly complied with the federal requirements, nor allowed the needed full and final 
enforcement of them on their citizens. Hence the great desideratum was to establish a 
new executive and judiciary — not subordinate to congress, but co-ordinate with it — de¬ 
riving their existence and power directly from the said creators — the governing people, 
and, with congress, possessing the same agential and coercive authority over the indi¬ 
vidual people that the state governments have. 

Thus was American federal government made to “ rest on the solid basis of the con¬ 
sent [i.e. will] of the people,” instead of the consent or will of the people’s legislatures 
[See Federalist, 22 ] 


THE ACTORS —THEIR MOTIVES AND PURPOSES. 


77 


sovereigns — thirteen united commonwealths — thirteen united re¬ 
publics. 

Preliminary Remarks on Federalization. — I will now proceed to 
show how each state as a body-politic gave to the federal compact its 
only validity wdthin her borders; how the thirteen states devised and 
created the federal system as a mode and agency for exercising their 
self-government in their general affairs, and considered the constitu¬ 
tion of it as an addition to their respective fundamental laws; how 
the powers delegated were trusts to be exercised by their elected sub¬ 
jects, who collectively form the federal government ; and how the said 
compact, and the government under it, were to be, and remain in 
necessary subordination to the associated states. 1 

All this will be shown by a full and careful exhibition of the acts of 
the states themselves, and the contemporaneous explanations of the 
fathers, who represented and acted for them. We shall see that the 
great design of the states was (as Joel Barlow expressed it), to “ feder¬ 
alize ” themselves, and to avoid consolidation; to make a federal and 
to avoid a consolidated government; in other words, to remain in the 
necessary condition of allied sovereigns, governing themselves—jointly 
by a federal government, and severally by state governments. 

It will be seen that each of all the thirteen states, of her own 
motion, ki her own time, by her own law, and in the plenitude of her 
own sovereign will, held a convention, and therein carefully deliberated 
and finally decided as a state, independently of the authority of the 
other states of the so-called nation, and of all the world, to “ assent to 
and ratify ” the federal constitution, i. e. to become a party thereto, 
and to give the said constitution, and the government it provided for, 
existence and jurisdiction within her borders. Inferentially, Article 
VII. of the compact, conclusively proves all this, for it declares that 
“the ratification” of nine states shall suffice for “the establishment of 
this constitution between the states so ratifying the same; ” but this 
is not enough, for I wish to show the perversions to be not only base¬ 
less, but sins against light and knowledge. 

1 The first edition of this work was published in England in the summer of 1865, and 
largely circulated in America; and the second was issued in New York, early in 1866. 
So far as the author knows, it was then the only work extant, putting the federal consti¬ 
tution, in a given state, on its actual and only legal basis, as the offspring of the will of 
that state, expressed by ratification, through a convention. 

Mr. A. H. Stephens’ valuable and instructive work entitled “The War Between The 
States,” Vol. I. published in 1868, apparently adopts the same view, and gives mainly 
the same evidence and arguments. But it must be said, with due deference, that Mr. 
Stephens falls into the cardinal error of supposing sovereignty to be divisible into 
powers, and susceptible of delegation and reservation; and moreover utters the glaring 
fallacy that sovereignty can be subject to the powers it delegates, “so long as the dele¬ 
gated power is unresumed.” These errors will be duly noticed. 


78 


FEDERALIZATION. 


In giving the history of each state’s action in ratifying the federal 
compact, I shall quote her ordaining words, which are of infinite im¬ 
portance, as the only expression of sovereign legislative will , that ever 
made the constitution “ the supreme law,” or indeed , any law at all , in 
any state . It will be found that the false charges which well-nigh 
defeated the system, are identical with the fallacious expositions of 
“ the Massachusetts school ” in later times. It will also be seen that 
though Dane, Story, Webster, and Curtis now assert that a nation 
was formed, the states reduced to subjection, and the government 
made sovereign, all the fathers are on record to the contrary, in the 
most direct and positive manner. 

With the name of each commonwealth will be given the order and 
date of her ratification, as well as her vote in convention. Let us first 
take the case of Massachusetts. The italics in the extracts are mainly 
my own; where otherwise it will be noted. 


CHAPTEK II. 


MASSACHUSETTS FEDERALIZES HERSELF. 

THE SIXTH TO RATIFY—VOTE 187 TO 168—DATE FEB. 7, 1788. 

T HOUGH Massachusetts was the sixth to ratify, her pre-eminence 
in making, as well as the efficiency of her “ school ” in afterwards 
destroying, the constitution, and the richness of her record in material 
for the purpose in hand, make it advisable to present her case first. 
It will be seen that her record decisively refutes the many volumes of 
pretended constitutional exposition, emanating from her sons and her 
press; and that all her history is opposed to the theory of the “ Mas¬ 
sachusetts school,” viz., that “the people of the united states,” are a 
nation, i. e. one sovereign people, represented by a national govern¬ 
ment, which is possessed of “ absolute supremacy ” so far as its vested 
powers go, and is the exclusive judge of the extent of said authority. 
In those days, she was the stickler, par excellence , for state sover¬ 
eignty ; took the lead in demanding amendments to secure it, and had 
a boasted influence to that end, on the subsequently ratifying states; 
and she, as will be seen, was the very proposer of the celebrated 
Tenth Amendment, which, as Samuel Adams explained in the con¬ 
vention — with the assent of all — meant that “ each state retains 
her sovereignty ,” as well as “ all powers not delegated” [II. Ell. Deb. 
131.] 

The Substance of the Objections. — The opposition charged that 
the phrase in the preamble, “ we the people of the united states . . . 
do ordain and establish this constitution,” coupled with the powers 
given in the instrument, transmuted the pre-existent states to a nation, 
the said states becoming fractional parts, i. e. provinces or counties; 
that, as the constitution was to be “ the supreme law of the land,” 
the government was to be a supreme power; and that, as this gov¬ 
ernment was to have the unlimited right of taxation, and the control 
of the militia for all national purposes, and was itself to be the judge of 
the extent of its powers, it followed that so far as the-constitution 
went, “so far” (to borrow the subsequent phrase from Webster) 
“ state sovereignty was effectually controlled.” It was quite natural 
that the people should be doubtful and apprehensive, and that much 


80 


FEDERALIZATION. 


honest as well as wrongful opposition should be made, for the federal 
convention had deliberated in secret, and the new system had trans¬ 
pired suddenly, while its seeming form was unwarranted. The question 
was whether the sovereignty of the states and the subordination of the 
government , were preserved in the new system ; and the great fears 
were, that the instrument consolidated the states into a nation ; or 
established a government that could control them, and do away with 
their statehood and sovereignty. 

Everybody opposed to Consolidation. — Washington, under 
“ the unanimous order of the convention,” reported the new project 
to congress in a letter, dated September 17, 1787, which contains 
the following little phrase : “in all our deliberations on this subject, 
we kept steadily in our view . . . the consolidation of our union.” 
Literally this phrase does not speak of the states; but it is the union 
of them that is to be consolidated, that is to say, increased in utility, 
efficiency, and strength, made more solid and strong, and more likely 
to endure. And, as will now be shown from her debates, this pre¬ 
cisely accords with what her statesmen said, in her ratifying conven¬ 
tion, in defence of the proposed system. One quotation will suffice 
to present the charge as made in the convention. Hon. Mr. Dench 
thought “ the words, ‘ we, the people,’ in the first clause ordaining 
the constitution,” and the eighth section of the first article, “ would 
produce a consolidation of the states, and the moment it begins, a dis¬ 
solution of the state governments commences.” [II. Ell. Deb. 98, 99.] 

General Brooks immediately replied that the idea that this con¬ 
stitution would produce “ consolidation ” of the states, or “ dissolu¬ 
tion” of their governments, was “ill-founded — or, rather, a loose idea. 
In the first place, the congress under this constitution cannot be or¬ 
ganized without repeated acts of the legislatures of the several states; 
and, therefore, if the creating power is dissolved, the body to be 
created cannot exist. In the second place, it is impossible that the 
general government can exist, unless the governments of the several 
states are forever existing; as the qualifications of the electors of the 
federal representatives are to be the same as those of the electors of 
the most numerous branch of the state legislatures. The powers to 
be given to congress amount only to a consolidation of the strength 
of the union.” [II. Ell. Deb. 99.] This is the same idea that was 
expressed by the president of the Virginia convention, as the object of 
union, viz., “ to bind in one ligament the strength of thirteen states.” 
And all the fathers constantly kept it in view, that the states were 
combining their strength for defence, as well as joining for con¬ 
venience, economy, and efficiency in the general government of their 
citizens. 


MASSACHUSETTS FEDERALIZES HERSELF. 


81 


Colonel Varnum said the purpose of the constitution “was only 
a consolidation of strength; ” and that the states were not to be con¬ 
solidated by it, and, moreover, that the congress provided for had no 
right to affect them. “ It is,” said he, “ the interest of the whole to 
confederate against a foreign enemy.” [II. Ell. Deb. 78.] 

Hon. James Bowdoin not only denied that there was danger of 
consolidation in the system, but he spoke of it as “ a confederacy , 
which would give security and permanency to the several states; ” 
that is to say, preserve them. [II. Ell. Deb. 129.] Judge Sumner 
argued that there was no danger that “ the delegation of these great 
powers would destroy the state legislatures, ... for the general gov¬ 
ernment depended on them for its very existence.” [Ibid. 64.] Hon. 
Mr. Sedgwick said that “ if he thought this constitution consolidated 
the union of the states, he should be the last man to vote for it.” 
[II. Ell. Deb. 77. See also Massachusetts Centinel, Feb. 2, 1788.] 

In the small volume of “ debates ” of the ratifying convention, 
published by the state early in the present century, at page 316 is to 
be found the following account and extracts. Mr. Shurtleff, refer¬ 
ring to General Washington’s letter above mentioned, objected that 
“ the convention said they aimed at a consolidation of the union.” 
Mr. Parsons, afterwards the Chief Justice of Massachusetts, said 
there was “ a distinction between a consolidation of the states , and a 
consolidation of the union.” Mr. Jones said that “the word ‘con¬ 
solidation ’ had different ideas.” “ Different metals melted into one 
mass,” he said, illustrated one, and “several twigs tied into one 
bundle,” the other. 

Hon. Mr. Dana, afterwards Chief Justice of Massachusetts, said, 
in the same debate, that “ if this government was a consolidation, in¬ 
stead of a confederation, he should think the number [of representatives] 
too small. But, as it is federal f and we have our own governments 
to support, the expense [of a larger number] would be too great.” 
[Memoirs of Chief Justice Parsons, p. 93.] George Cabot, writing 
to Judge Parsons, February 28, 1788, said that one of the great fears of 
the people was, that the constitution makes “ such a consolidation of 
the states as will dissolve their governments,” but that the equal 
suffrage in the senate “ is security that no measures will ever pass 
tending in the smallest degree to consolidation.” [See Memoirs of 
Judge Parsons; see also Amory’s Life of Governor Sullivan, p. 
534.] 

Fisher Ames, the great Massachusetts statesman and orator, said : 
“No argument against the new plan has made a deeper impression 
than this, that it will produce a consolidation of the states. This is 
an effect which all good men deprecate. The state governments are 

6 


82 


FEDERALIZATION. 


essential parts of the system. The senators represent the sovereignty 
of the states. They are in the quality of ambassadors of the states. 
... A consolidation of the states . * . would subvert the consti¬ 
tution. Too much provision cannot be made against consolidation. 
The state governments represent the wishes and feelings and local 
interests of the people.” He further said that they would “ afford 
shelter against the abuse of federal power,” and that “the system 
would be, in practice as in theory, a federal republic.” [II. Ell. Deb. 
46.] Though other extracts could be produced, these will suffice. I 
have piled up this mass of proof to make Massachusetts refute her 
own sons; to expose their offence in suppressing or garbling her 
record to get excuses for violating her sacred faith; and to prevent 
further confidence in them as to these subjects. But this is not all: 
for the record further shows the direct opposite of consolidation, to 
have been the solemn understanding on which Massachusetts ratified. 
Let us see. 

The Severalty and Sovereignty of the States.—=■ Her wise men 
in the convention gave to her, many and most emphatic assurances on 
this point. I have just quoted Fisher Ames as saying, “the senators 
represent the sovereignty of the states.” [II. Ell. Deb. 46.] Judge 
Parsons said the senate was designed “to preserve the sovereignty of 
the states.” [See his “Memoirs” by his son, p. 98.] Christopher 
Gore, for many years one of her leading statesmen, said : “The sen¬ 
ate represents the sovereignty of the states.” [II. Ell. Deb. 18.] Gov¬ 
ernor Bowdoin said the states are “ distinct sovereignties .” [II. Ell. 
Deb. 129.] George Cabot, afterwards one of her federal senators, 
said the “senate is a representation of the sovereignty oi the individ¬ 
ual states.” [II. Ell. Deb. 26.] Mr. Thacher said : “The senate are 
elected by the legislatures of the different states, and represent their 
sovereignty .” [II. Ell. Deb. 145.] Samuel Adams said that, under 
the new constitution, “ each state retains her sovereignty .” [II. Ell. 
Deb. 131.] Other similar quotations might be given, but it is not 
necessary, as none of the fathers dissented, and as the then existing 
federal compact, and the constitution of Massachusetts, both contained 
assertions of absolute state sovereignty, which the fathers neither 
sought to nor could go behind. 

“We, the people,” means Massachusetts. — The phrase, “the 
people,” was then used in a general sense, as it is now; for the people 
of all the states were alike in political condition, had common senti¬ 
ments, and aimed at self-government, not only as societies , such as 
they then were, but as united societies, which they were then seeking 
to become. Their contemplated self-federalization was for conven¬ 
ience, economy, and united strength. “ The people,” then, only ex- 


MASSACHUSETTS FEDERALIZES HERSELF. 


83 


isted, and had capacity for political action, as states; and, as these 
bodies were equal, they must have been respectively sovereign. Con¬ 
sistently with this idea, the organic laws of the states generally 
declared that “ all power is inherent in the people,”— the state mak¬ 
ing the declaration referring to herself, of course, for she made it inde¬ 
pendently, and had no right or reason to make it for any other people. 
Wherefore, we shall find the phrase, when technically and constitution¬ 
ally used, to mean the people of a state, or the people of the states, 
considered as sovereignties. The records of all the states show this, 
as will be seen. I now proceed to give the conclusive proof Massa¬ 
chusetts affords. Her own record shows her to be as autocratic as 
the Czar in decreeing her institutions, state and federal, as well as in 
her present political status. When her people, as a separately and 
thoroughly organized colony, assumed independence, and “ by a social 
compact ,” to use their own words, formed themselves into a state, 
they solemnly preambled as follows : Thanking God for the opportu¬ 
nity of deliberately entering into “an original, explicit, and solemn 
compact with each other,” and “forming a new constitution of civil 
government for themselves and posterity,” they declare that “ We, the 
people of Massachusetts, ... do agree upon, ordain, and establish the 
following declaration of rights and frame of government as the con¬ 
stitution of the commonwealth of Massachusetts.” And it in no wise 
qualifies the sovereign character of the said “We, the people” that 
they establish a federal government, for this must exist by their crea¬ 
tion, hold their powers in trust, and hence remain subordinate to 
them. Indeed, the same fundamental law that I have just quoted 
from, declares that “ the people of the commonwealth have the sole and 
exclusive right of governing themselves as a free, sovereign, and inde¬ 
pendent state,” and that they “ forever hereafter shall exercise and 
enjoy every power, jurisdiction, and right, which is not ... by them 
expressly delegated to the united states in congress assembled.” [See 
the present constitution of Massachusetts, Part I. Art. 5.] 

What her Statesmen meant by “We, the People.” — We see, 
from the above fundamental law, that her delegates, agents, and ser¬ 
vants, whether in the federal or state convention, were absolutely 
bound to mean her alone, when they spoke or wrote the phrase, “ We, 
the people; ” for, collectively, they were her mouth-piece, and were 
only authorized to speak the voice of her power. Let us see what 
they say. I shall quote somewhat copiously, as the debate is very 
instructive, and as Massachusetts completely destroys the theory of 
“the Massachusetts school.” 

Dr. Charles Jarvis, an able member of the convention, said: 
“Under what authority are we acting 1 . . . AVe are convened in 


84 


FEDERALIZATION. 


right of the people, as their immediate representatives, to execute the 
most important trust which it is possible to receive.” “ He considered 
the constitution as an elective democracy, in which the sovereignty 
still rested in the people,” i.e. remained where it had been, — in the 
state. He further spoke of the convention as “ the whole people of 
Massachusetts assembled by their delegates ,” and said : We are “ at 
liberty to resolve in what form this trust shall be executed.” “ We 
have a right to receive or reject the constitution.” [II. Ell. Deb. 
151.] 

Samuel Stillman, a prominent member of the convention, after 
showing that the president, the senate, and the house of representa¬ 
tives are to be elected by or for “ the people of the several states,” con¬ 
tinued : “ It will be their own fault, then, if they [i.e. the people of 
a given state] do not choose the best men in the commonwealth. Who 
are congress, then ? They are ourselves, — the men of our choice, in 
whom we confide, whose interest is inseparably connected with our 
own.” [II. Ell. Deb. 167.] 

Hon. Charles Turner said : “ I know great powers are necessary 
to be given to congress, but I wish they may be well guarded.” I 
know not whether this convention will vote a ratification of this con¬ 
stitution or not. If they should do it, and have the concurrence of the 
other states ,” etc. II. Ell. Deb. 32, 171.] 

James Bowdoin, afterwards governor, said : “ All power is derived 
mediately or immediately from the people, in all the constitutions. 
This is the case with the federal constitution. The electors of repre¬ 
sentatives to the state governments are electors of representatives to 
the federal government.” Speaking of the power of imposing taxes, 
duties, etc., he said : “ The states empower congress to raise money.” 
He further said : “ Shall we, then, we of this state, who are so much in¬ 
terested in this matter, deny themTdiat power, — a power so essential 
to our political happiness 1 . . . Whether such power be given by the 
proposed constitution, it is left with the conventions of the several states, 
and with us, who compose one of them, to determine.” [II. Ell. Deb. 
81 ; see also Ibid. 125, et seq.~\ 

Theophilus Parsons, afterwards the noted Chief Justice, char¬ 
acterized the new political arrangement as “ a government, to be ad¬ 
ministered for the common good, by the servants of the people, vested 
with delegated powers, by popular elections at stated periods. The 
federal constitution establishes a government of this description, and 
in this case the people divest themselves of nothing ; the government 
and the powers which congress can administer, are the mere result of 
a compact made by the people with each other for their common defence 
and general welfare.” He speaks of the powers of government being 


MASSACHUSETTS FEDERALIZES HERSELF. 


85 


taken by the people from their state governments, and put in the fed¬ 
eral one. Of course the people of the state alone could do this. 
[See II. Ell. Deb. 88, et seq.~\ 

John Hancock, the president of the convention, as well as governor 
of the state, spoke of 11 the people of this commonwealth ” as having the 
absolute right to reject or ratify “the proposed form of government.” 
And he considered the federal constitution as “ the delegating ” of 
power by “ the people to men who were dependent on them frequently 
forelection.” [II. Ell. Deb. 175.] 

We see, then, that by “ We, the people,” in the preamble of the 
federal compact, the Massachusetts fathers meant, and could but 
mean, the people of the states , as commonwealths ; and that they recog¬ 
nized the said states as the sole sources of power, and as the compact¬ 
ing and ordaining parties to a “ union of states,” formed for “ the 
common defence and general welfare.” They unquestionably consid¬ 
ered the states as sovereign republics, or self-governing peoples, form¬ 
ing a federal system, or republic of republics. 

The Fear of losing Statehood. — The advocates of the new plan 
conclusively showed that the precious integrity and sovereignty of 
the states were untouched by it; but the public fear could not be 
thus allayed. The fact was unappreciated, even if known, that the 
federal convention had repudiated and excluded from the constitution 
all ideas of controlling and coercing states; and had only given the 
federal agency legal jurisdiction and power of coercion over citizens, — 
such pow r er, of course, coming from, belonging to, and being’exercised 
for, the states. It was owing to the aforesaid vague and general fear, 
that a bill of rights, and other limitations of, and safeguards against, 
federal power were generally demanded, — with what result on Massa¬ 
chusetts, we shall now see. 

She proposes the Tenth Amendment. — Samuel Adams, one of 
the great revolutionary leaders of Massachusetts, had, with many 
others, gone into the convention evidently determined to defeat the 
constitution, — his unfavorable first impression of that instrument 
being indicated by the following extract from a letter to Richard 
Henry Lee, dated December 3, 1787 : “I stumble at the threshold. 
I meet w r ith a national government, instead of a federal union of 
sovereign states. ... If the several states are to become one entire 
nation, under one legislature, its powers to extend to all legislation, 
and its laws to be supreme and control the whole, the idea of sover¬ 
eignty in these states must be lost.” If he and other leading men 
had remained under this impression, the federal plan would have 
been spurned with unanimity, for the ideas, which subsequently be¬ 
came Websterian dogmas, had in those days no friends and advocates ; 


86 


FEDERALIZATION. 


and the people of the country were all determined that there should 
be no consolidation of the states, and that state integrity and sover¬ 
eignty should be absolutely preserved. 

Late in the session, when everything foretokened overwhelming 
defeat, Gov. Hancock, representing the leading advocates of the sys¬ 
tem, came forward with “ conciliatory propositions/’ the substance of 
which was, that Massachusetts should, at the time of her ratification, 
propose to her sisters several amendments, to secure the integrity 
of the states and the subordination of the new government, — the 
most important of them being the one which, on her motion, as it 
were, subsequently became the tenth. When he proposed these 
amendments, he gave his assent to the constitution, “ in full confi¬ 
dence that the said amendments would soon become a part of the 
system; ” and said that, as they were “ calculated to give security and 
ease alike to all the states, he thought all would agree to them.” 
[II. Ell. Deb. 175.] The effect of these “conciliatory propositions’’ 
can be best seen from the response of Samuel Adams. Said he: 
“ Your Excellency’s first proposition is ‘that it be explicitly declared 
that all powers not expressly delegated to Congress, are reserved to 
the several states to be by them exercised.’ This appears to my mind 
to be a summary of a bill of rights, which gentlemen are anxibus to 
obtain. ... It is consonant with the second article in the present 
confederation, that each state retains its sovereignty . . . and every 
power . . . which is not . . . expressly delegated to the united 
states in congress assembled.” [II. Ell. Deb. 131.] Confidence 
(afterwards justified by the event) being felt that these amendments 
would be adopted ; and the great opposition leader expressing him¬ 
self satisfied, and determined to vote yes, the opponents yielded suf¬ 
ficiently to allow ratification by the very small majority of 19, in a 
membership of 355 votes, the firm and formidable minority still 
vaguely fearing that the instrument might be susceptible of the very 
meaning that Dane, Story, and Webster afterwards, by perversion, 
put upon it. 

The Amendment a Truism, though Useful. — But for the under¬ 
standing that this amendment at least would be added to the com¬ 
pact, the system -would certainly have been defeated, though in 
reality the said amendment could make no change, it being a mere 
truism, or, at best, a gloss, and only tantamount to the declaration 
that all powers not given are reserved, — a self-evident proposition. 
Still the general understanding that such an amendment was to be 
made, bore a large and useful part in satisfying the people of several 
of the states that their sovereignty was preserved in the system, while 
“powers” only were delegated or trusted to agents. Unquestionably 


MASSACHUSETTS FEDERALIZES HERSELF. 


87 


this was the unanimous sentiment and sine qua non of Massachusetts. 
Her idea was that, by virtue of her sovereignty, which was essentially 
characteristic and inalienable (as her constitution then declared, and 
as indeed it declares now), she delegated powers just as a principal 
would to his agent, to be used for her benefit, and still belonging to 
her, and subject to her resumption at will; and ex abundante cautela , 
she declared that all not delegated were reserved. Nay, more, the 
whole agency was necessarily composed of citizens and subjects of the 
allied sovereigns, elected by them. The wide distinction between the 
sovereign right of delegating authority, and the powers imparted by 
delegation, was afterwards forcibly expressed by Samuel Adams in a 
letter to Riehard Henry Lee, dated July 4, 1789, as to the object and 
importance of this very amendment. It is, said he,“that the good 
people may clearly see the distinction — for there is a distinction — 
between the federal powers vested in congress,.and the sovereign au¬ 
thority belonging to the several states, which is the palladium of the 
private and personal rights of the citizens.” He said further, he hoped 
for some, judicious amendments, “ so that the whole people may, in 
every state, contemplate their own safety on solid grounds, and the 
union of the states be perpetual.” [This, and a like letter to El- 
bridge Gerry, are in III. Life of S. Adams.] 

Now while Hancock, Adams, Ames, Parsons, Bowdoin, and others, 
were incessantly denying consolidation, and assuring the state that 
her sovereignty was to be absolute in the new system, why did not 
some of the Danes, Storys, Websters, and Curtises of that day, get 
up and remark : “ Oh, no, it is not the states, but the nation that is 
sovereign; it is the people of the states in the aggregate, that now 
ordain this constitution; and therein they establish a distribution of 
their powers between this, their general government, and their several 
state governments; and so far as this constitution goes, ‘ so far state 
sovereignty is effectually controlled’ ”1 Suppose the great men I have 
quoted had, arguendo , uttered these Websterian dogmas, would a 
single vote have been obtained 1 But no such idea could have been 
felt by anybody. Why h Because Massachusetts, at that moment, 
had a standing declaration in her organic law — as well as in the then 
existing “ federal constitution ” — that she was a “ sovereign, free, and 
independent state ; ” and she then was, in the precise character indi¬ 
cated by these superlative and unambiguous words, in convention, 
determining her will — independently of all the world — as to a fed¬ 
eration for herself and other agreeing states, and a general govern¬ 
ment for their people; and, in that precise character, she was then 
and there “ delegating ” — not sovereignty , but — “ powers ” to “ dele¬ 
gates,” “ representatives,” “ substitutes,” “ agents,” “ servants,” “ trus¬ 
tees,” etc., as they were uniformly called. 


88 


FEDERALIZATION. 


The quotations I have produced were dissented from by no friend 
of the constitution; they entirely contradict the utterances of the 
Massachusetts expounders ; and we can now see, that a reader must 
ask himself at every line of the record : “ Is this why Story, Webster, 
and Curtis never quoted from so proper a source of authority as the 
debates of the Massachusetts Ratifying Convention ? ” 

The Sole Ordaining was by Massachusetts. — The convention 
ratified the constitution, as follows : “ In convention of the delegates 
of the people of the commonwealth of Massachusetts, 1788. The 
convention, having impartially discussed and fully considered the 
constitution for the united states of America, reported to congress by 
the convention of delegates, . . . and submitted to us, by a resolu¬ 
tion of the general court of the said commonwealth, passed the 25th 
of October, last, . . . do, in the name, and in behalf, of the people 
of the commonwealth of Massachusetts; assent to and ratify the 
said constitution for the united states of America.” 

Not in the name and behalf of any nation, or part of a nation, did 
the convention deliberate upon, assent to, and ratify the instrument, 
but it was for the body of people called Massachusetts, — a body at 
the moment absolutely sovereign. As to her, the passage of the above 
ordinance completed the compact; and it was established when 
eight other states did likewise; for, as Article VII. declares, it was 
“ ratification ” by nine states ( i . e. nine ratifications) that was to be 
“sufficient for the Establishment of this constitution between the 
states so ratifying the same.” The federal compact, therefore, re¬ 
ceived its whole life and validity from Massachusetts and the other 
ratifying states. She and they must have been “ the people of the 
united states” that did “ordain and establish the constitution.” 
There were no other people in the country than such states, and 
consequently no ordainers but them. And as to her territory 
and people, she alone gave it existence, and its authorities jurisdic¬ 
tion, over them. It was not “the people” as individual voters 
that ratified, but “the people” as states or nations. Massachu¬ 
setts spoke her sovereign will through her convention, and remained 
Massachusetts. No institution, nor anything organic, was changed. 
Pre-existent states simply made a compact, and the federal system 
became an addition to the political institutions of the country; 
and, as it was created by, it belonged absolutely to, the states. Nay, 
more, the administration of it was to be wholly and solely by the 
subjects of the said states. So that its status is, and must be, simply 
that of a servant or agent. We have found, then, in the history and 
records of Massachusetts, one absolute sovereign, acting in the forma¬ 
tion of the federal system, or the republic of republics. Now let us 
look for another. 


CHAPTER III. 


CONNECTICUT FEDERALIZES HERSELF. 

THE FIFTH TO RATIFY —VOTE 128 TO 40—DATE, JAN. 9, 1788. 

T HE record of this state agrees precisely with that of Massachu¬ 
setts, in disproving the consolidation of the states, and proving 
their most anxious wish to preserve their integrity and sovereignty 
in the union. To establish this, I will adduce the testimony of her 
leading statesmen, and conclude with her sovereign decree of ratifica¬ 
tion, which, as to her, constituted the league called the federal consti¬ 
tution. 

What her Statesmen said. — A federation of sovereignties was the 
object of this state from the beginning, and the great men represent¬ 
ing her in the federal convention, considered it accomplished in the 
constitution proposed. Having carefully guarded against consolida¬ 
tion, two of them, Ellsworth and Sherman, reported to the governor 
of the state, that the aim in the proposed system was “to provide 
for the energy of government on the one hand, and suitable checks on 
the other, to secure the rights of the particular states, and the liber¬ 
ties and properties of the citizens. We wish it may meet the appro¬ 
bation of the several states, and be a means of securing their rights, 
and lengthening out their tranquillity.” [II. Ell. Deb. 491.] 

Roger Sherman, one of her greatest statesmen, said : “ The govern¬ 
ment of the united states being federal, and instituted by a number 
of sovereign states for the better security of their rights, and the ad¬ 
vancement of their interests, they may be considered as so many 
pillars to support it.” 1 He wrote to John Adams, July 20, 1789, 
that “it is optional with the people of a state, to establish any form 
of government they please, — to vest the powers in one, a few, or 
many, and for a limited or unlimited time;” and “that they may 
alter their frame of government when they please, any former act 
of theirs, however explicit, to the contrary notwithstanding.” [V. 
Life of John Adams, 438, 440.] 

l The authority for this extract, which I once had, is lost; but' the equivalent is in 
VI. Life and Times of John Adams, 440. Did he not use these words in the ratifying 
convention of Connecticut? I have seen it stated that he did. 


90 


FEDERALIZATION. 


Oliver Ellsworth, afterwards Chief Justice of the United States, 
said in the ratifying convention : “ A union is necessary for the pur¬ 
poses of a national defence. United we are strong; divided we are 
weak.” He further speaks of “ economy,” the keeping of peace among 
the states, and the preservation of commutative justice among them, 
as among the motives of union. In the federal convention he moved 
to expunge the word “ national ” from the constitution, and substitute 
the words “government of the united states,” which was agreed to, 
nem. con. In the ratifying convention of Connecticut, he characterized 
the union as a “confederation,” and said, “the constitution does not 
attempt to coerce sovereign bodies, — states in their political capacity; ”, 
but that the only coercion contemplated, was the same as that of the 
state governments, — legal coercion of. individual citizens. [II. Ell. 
Deb. 186, 197.] 

Oliver Wolcott, subsequently secretary of the treasury, and sen¬ 
ator, said, in the ratifying convention : the constitution effectually 
secures the states in their several rights. It must secure them for its 
own sake; for they are the pillars which uphold the general system. 
... I am happy to see the states in a fair way to adopt a constitu¬ 
tion, which will protect their rights, and promote their welfare. [ii. 
Ell. Deb. 202.] 

Governor Huntington spoke of the great movement as “ the peo¬ 
ple meeting together by their representatives, and with calm deliber¬ 
ation framing for themselves a system of government.” [II. Ell. Deb. 
200 .] 

Chief Justice Law said : “ The whole is elective ; all dependent on 
the people. The president, the senate, the representatives, are the 
creatures of the people. . . . Some suppose that the general govern¬ 
ment, which extends over the whole, wall annihilate the state gov¬ 
ernments. But consider that this general government rests upon the 
state governments [he probably meant states] for its support. It is 
like a vast and magnificent bridge, built upon thirteen strong and 
stately pillars. Now, the rulers who occupy the bridge cannot be 
so beside themselves as to knock away the pillars which support the 
whole fabric.” [II. Ell. Deb. 201.] 

“We, the People,” means Connecticut. — It is evident that she 
ratified because her statesmen asserted positively, and proved conclu¬ 
sively, that the “ convention of states ” had matured a federal system 
instead of a national one, and that the integrity and sovereignty of the 
states, as well as the limitation and subordination of the “ delegated 
powers,” were absolutely secured. Her convention adopted the consti¬ 
tution by a majority of 88 in 168 members, — such convention speak¬ 
ing as follows in the ratification : “ In the name of the people of the 


CONNECTICUT FEDERALIZES HERSELF. 


91 


state of Connecticut, we, the delegates of the people of the said 
state, in general convention assembled, pursuant to an act of the legis¬ 
lature in October last, . . . by these presents, do assent to, ratify, 
and adopt the constitution, reported by the convention of delegates 
in Philadelphia, ... for the united states of America. Done in con¬ 
vention this 9th day of January, a. d. 1788.” 

This is the only way the federal constitution got into Connecticut, 
and this ordinance is the only law by which it exists there ; and yet 
Dane, Story, and Webster have ventured to represent that, instead of 
the constitution being voluntarily established by Connecticut within 
her borders, it was made by the people of all the states, as a mass or 
nation, and imposed on Connecticut as “the supreme law ” over her. 
So far as this constitution goes, said Webster, “ so far state sover¬ 
eignty is effectually controlled.” 

It is unquestionable, then, that Connecticut ratified as a sovereign, 
and that, as a party, she remained above the said constituted league, 
above the “ powers ” she entrusted, and above the agency created for 
the exercise of those powers. It could not be otherwise, for the 
agency was to consist of the elected subjects of the federalized sover¬ 
eigns, and could but be subordinate to them. We are not called 
upon to consider whether she could have merged herself, and extin¬ 
guished her statehood, for the fact is proved that she did not do so. 
Here, then, is absolute sovereign No. II. 


CHAPTEE IV. 


NEW YORK FEDERALIZES HERSELF. 

THE ELEVENTH TO RATIFY —VOTE, 30 TO 27 —DATE, JULY 26, 1788. 

I N the convention of this state, the contest was long, severe, and 
doubtful, principally turning upon the existence or non-existence 
in the constitution, of the principles now asserted by the Massachu¬ 
setts school. These were then urged as serious charges. Indeed, two 
of her delegates, Yates and Lansing, had left the federal convention 
because they were “ opposed to any system,” however modified, which 
had in view the “ consolidation of the united states into one govern¬ 
ment.” And, as they feared that the system proposed by the conven¬ 
tion had a tendency to that evil, they strove to have it rejected by 
their state. 

What her Statesmen thought of the System. — The views taken 
and the defence made by the federalists of Massachusetts, were re¬ 
peated in the convention of New York. The leading constitutionists, 
with masterly ability, refuted the said charges, and showed that the 
states were to be preserved intact, as the very basis, nay, as the “ es¬ 
sential component parts of the union,” and were, as absolute sover¬ 
eigns, then dividing the powers they chose to delegate, between their 
state governments and their federal (or league-al) one; the subject 
then in hand being the creation and endowment of the latter by the 
compacting sovereign states. 

John Jay, the first chief justice under the new constitution, said, 
in his address to the people of New York, early in 1788, to induce 
them to adopt the new system : “ The proposed government is to be 
the government of the people : all its officers are to be their officers, 
and to exercise no rights but such as the people commit to them. 
The constitution only serves to point out that part of the people’s 
business, which they think proper by it to refer to the management of 
the persons therein designated. These persons are to receive that 
business to manage, not for themselves and as their own, but as the 
agents and overseers for the people, to whom they are constantly 
responsible, and by whom they are to be appointed.” In the same 
address to the people of New York, from which these words are 


NEW YORK FEDERALIZES HERSELF. 


93 


quoted, Mr. Jay said : “ The states of Georgia, Delaware, New Jersey, 
and Connecticut, have adopted the present plan; ” and he earnestly 
advised the state of New York to do so. [I. Ell. Deb. 496.] In the 
ratifying convention, Mr. Jay called the system provided for in the 
compact, a “ union of states,” and said “ the objects of the general gov¬ 
ernment comprehended the interests of the states, in relation to each 
other, and in relation to foreign powers.” His view obviously was that 
the states, as sovereign bodies, were compacting and creating a gov¬ 
ernmental agency, which was to remain subordinate to them, and act 
as their servitor in “ providing for the common defence and promoting 
the general welfare.” [II. Ell. Deb. 282 et seq .] 

Robert R. Livingston, the chancellor of the state, said, in the 
same convention : “ A republic may very properly be formed by a 
league of states; but the laws of the general legislature must act and 
be enforced upon individuals. I am contending for this species of 
government.” [II. Ell. Deb. 274.] 

He said further : “ Our existence as a state depends on a strong 
and efficient federal government; ” but “ we ” [the people of New 
York] must see that the power we “ entrust to our rulers be so placed 
as to insure our liberties and the blessings of a well-ordered govern¬ 
ment.” And after stating the fact that “ the American people were 
all agreed upon the great principle of government,” that “ all power 
is derived from the people,” he spoke as follows : “ They consider the 
state and federal governments as different deposits of that power. 
In this view, it is of little moment to them whether that portion of 
it which they must, for their own happiness, lodge in their rulers, be 
invested in the state governments only, or shared between them and 
the councils of the union. The rights they reserve are not diminished, 
and probably their liberty acquires additional security from the divi¬ 
sion.” [II. Ell. Deb. 210.] What people did he mean? Who were 
dividing their powers, — delegating some and reserving others ? Of 
course, the people of the state, whose convention he was then address¬ 
ing and advising. 

Alexander Hamilton, in the same convention, characterized the 
new political system as “ a confederacy of states , in which the supreme 
legislature has only general powers, and the civil and domestic con¬ 
cerns of the people are regulated by the laws of the several states.” 
[II. Ell. Deb. 353.] “While the constitution continues to be read 
and its principles known, the states must, by every rational man, be 
considered as essential component parts of the union.” [Ibid. 304.] 
“ The destruction of the states must be at once a political suicide. 
Can the national government be guilty of this madness ? ” [Ibid. 353.] 
“ The question of the division of powers between the general and 


94 


FEDERALIZATION. 


state governments is a question of convenience. It becomes a pru¬ 
dential inquiry into the proper objects of the two governments. This 
is the criterion by which we shall determine the just distribution of 
powers.” “ We ” — who ? “ Determine ” — what 'i Evidently “ the 

people ” of New York, in convention, were determining “the just dis¬ 
tribution ” of their “ powers.” Hamilton did not see “ the nation ” 
then establishing a “ distribution of powers between this, their general 
government, and their several state governments.” 

John Lansing, the chief opponent of the new system, admitted, 
in the ratifying convention, that the framers of the federal system 
designed the senators “ to represent ” and “ to protect the sovereignty 
of the several states ; ” but he charged and argued that the operation 
and tendency of the system would be contrary to the design. [Ibid. 
289, 290.] 

Ratification in Confidence of Amendments. — All their argu¬ 
ments, however, would have been futile, but for the understanding 
that the much dreaded danger would be specially forefended by 
amendment. In the circular letter to the other states, dated July 28, 
1788, signed by Governor George Clinton, “ by unanimous order of 
the convention,” it was stated that “several articles ” were “ so excep¬ 
tionable to a majority of us, that nothing but the fullest confidence 
of obtaining a revision, . . . and an invincible reluctance to sepa¬ 
rating from our sister states, could have prevailed upon a sufficient 
number to ratify it without stipulation for previous amendments.” 
[II. Ell. Deb. 413.] 

And the convention, in the very act of ratifying the constitution, 
did “ declare and made known ” the following, among 34 articles, 
declaratory of the understanding of New York : — 

I. “ That all power is originally vested in, and, consequently, de¬ 
rived from, the people; and that government is instituted by them 
for their common interests, protection, and security.” 

III. “ That the powers of government may be re-assumed by the 
people, whensoever it shall become necessary to their happiness; that 
every power, jurisdiction, and right, which is not, by the said constitu¬ 
tion, clearly delegated to the congress of the united states, or the 
departments of the government thereof, remains to the people of the 
several states, or to their respective state governments, to whom they 
may have granted the same; and that those clauses in the said con¬ 
stitution, which declare that congress shall not have or exercise certain 
powers, do not imply that congress is entitled to any powers not given 
by the said constitution, but such clauses are to be construed either 
as exceptions to certain specified powers, or as inserted for greater 
caution.” [I. Ell. Deb. 327.] 


NEW YORK FEDERALIZES HERSELF. 


95 


What people were then “delegating powers” for “their happiness” 
and “security”? The people of the state, of course. By what peo¬ 
ple, then, was the power at that moment being “delegated,” to be 
“ re-assumed ” when “ necessary to their happiness ” ? The nation 
“ re-assuming ” power “ delegated ” by the state is a gross solecism, 
and by this single sentence the whole argument against the right of 
secession is scattered to the winds! 

Decisive Proof that “ we, the People,” means New York. — To 
conclude the case of New York, I quote the ordaining words of her act 
of ratification, and beg the reader to reflect that there is no breath of 
federal existence, or shade of federal power, in New York, except what 
comes therein by virtue of these words : — 

“We, the delegates of the people of the state of New York, duly 
elected and met in convention, having maturely considered the consti¬ 
tution of the united states of America; ... in the name and behalf 
of the people of the state of New York, do, by these presents, 
assent to, and ratify the said constitution.” 

In the body of the ordinance, and as a part thereof, the convention 
declare that they ratify, with the understanding that “the rights 
aforesaid cannot be abridged or violated;” that “the explanations” 
made are consistent with the constitution; and that they do it, in con¬ 
fidence that the amendments “ proposed ” will receive an early and 
mature consideration. The ratification was carried by a majority of 
3 in a membership of 57. Suppose Dane, Story, and Webster had 
been there, to talk of the nation or aggregate sovereign people “ dis¬ 
tributing their powers between their state governments and their general 
government,” — the said nation sovereign and the states subordinate, 
— why, they would have been derided, and the federal plan spurned 
from the convention ! 

Here is the decisive act of the political body called New York, 
“ assenting to and ratifying ” the constitution, with her own free and 
absolute will, precisely as any sovereign state of Europe would have 
given her assent to any agreement with co-equal states. This ordi¬ 
nance is the only possible act of sovereign authority putting in force in 
New York the federal compact and its resultant government. It was 
the will qf New York, and not that of any nation, that then and there 
made and finished the “supreme law.” From her, and her sister 
sovereigns, the government then received its existence, its status, and 
the power it was to exercise in trust “ for the common defence and the 
general welfare.” It is absurd to suppose this delegated authority 
could ever become coercive authority over the sovereigns, principals, 
and masters that had delegated it; or to suppose that such authority 
did not remain simple legal jurisdiction, to be enforced by legal 


96 


FEDERALIZATION. 


means, over the individual citizens of the states, — such jurisdiction 
being derived, as aforesaid, solely from the said sovereigns, whose 
subjects all citizens respectively are. Hence we see that New 
York remained, as she intended to be — an absolute sovereign in 
the union. 

Her Present Autocratical Declarations. — New York now repeat¬ 
edly declares, in her fundamental laws, her absolute sovereignty in the 
union, — even rivalling Massachusetts in her imperial self-assertion. 
Exempli gratia , she declares, in her constitution, adopted November 3, 
1846, that “the people of this state, in their right of sovereignty, 
are deemed to possess the original and ultimate property, in and to all 
lands within the jurisdiction of the state.” [Const, of N. Y. § 2.] 

She also declares, as part of her fundamental law, that “ the sover¬ 
eignty and jurisdiction of this state extend to all the places within the 
boundaries thereof, as declared in the preceding title; but the extent 
of such jurisdiction over places that have been, or may be, ceded to 
the united states, shall be qualified by the terms of such cession.” 
[I. Rev. Stat. N. Y.] Note that it is “jurisdiction,” and not sover¬ 
eignty, that is to be qualified. We shall hereafter see that the fed¬ 
eral government has foothold, to exist and act, in any state, only by 
permission and grant of the sovereign commonwealth, and strictly 
according to the terms of such grant. 

She declares, further, that “ it shall be the duty of the governor, 
and of all the subordinate officers of the state, to maintain and defend 
its sovereignty and jurisdiction.” [Ibid.] 

She further declares, that “no member of this state shall be dis¬ 
franchised, or deprived of any of the rights or privileges secured to 
any citizen thereof, unless by the law of the land, or the judgment of 
his peers; ” and that “ no authority can, on any pretence whatsoever, 
be exercised over the citizens of this state, but such as is, or shall be, 
derived from, and granted by, the people of this state.” [Const. N. Y. 
Art I. § 1; Rev. Stat. ch. IV. § 1.] 

Judging, then, from her own federal history and present declara¬ 
tions, no more absolute sovereign than New York exists on earth. 
She alone has the supreme right of government upon her soil, and the 
federal government exists and acts there solely as her agent. 


CHAPTER Y. 


NEW JERSEY FEDERALIZES HERSELF. 

THE THIRD TO RATIFY —VOTE, UNANIMOUS —DATE, DEC. 18, 1787. 

I N the convention of states, New Jersey was represented by Gov¬ 
ernor William Livingston, David Brearly, Wm. Patterson, and 
Jonathan Dayton. These statesmen, with the delegates from Con¬ 
necticut, Delaware, and other minor states, insisted on the strict prin¬ 
ciples of federation being observed; and, as will be seen, they were 
completely successful, vanquishing their opponents in argument, as 
well as in voting. So satisfactory was the plan adopted, that they 
signed it, and aided at home to procure the ratification of their state, 
which was unanimous. 

The Views of her Statesmen. — William Patterson, who, in the 
federal convention, introduced the plan of the new system, known as 
the New Jersey plan [see I. Ell. Deb. 175], said that “the amend¬ 
ment of the confederacy was the object of all the laws and commis¬ 
sions upon the subject.” “The commissions under which we act are 
not only the measure of our power : they denote, also, the sentiments 
of the states on the subject of our deliberation. The idea of a national 
government, as contradistinguished from a federal one, never entered 
into the mind of any of them; and to the public mind we must ac¬ 
commodate ourselves.” [Y. Ell. Deb. 176.] He said, further, in refer¬ 
ence to a plan tending to consolidation : “We are met here as deputies 
of thirteen independent sovereign states, for federal purposes. Can 
we consolidate their sovereignty, and form one nation, and annihilate 
the sovereignty of our states, who have sent us here for other pur¬ 
poses ? . . . But it is said that this national government is to act on 
individuals, and not on states; and cannot a federal government be 
so formed as to operate in the same way 1 It surely may. I therefore 
declare that I will never consent to the present system, and I shall 
make all the interest against it, in the state I represent, that I can.” 
[I. Ell. Deb. 403.] 

These remarks were made early in the session (June 9, 1787), when 
it was proposed to give the small states power in the new system only 
in proportion to their numbers, and when their delegates feared that 

7 


98 


FEDERALIZATION. 


they would be gradually merged into a nation. The plan that finally 
prevailed, as will be seen, was, as he then expressed it, “ a federal gov¬ 
ernment ,” “ so formed as to operate ” “ on individuals , and not on 
states” 

I have many kindred expressions from the New Jersey statesmen, 
but not having space for them, I select the above as the most pithy, 
as well as a fair specimen. It is also one of the most accessible ones 
to the common reader. Moreover, it fairly represents the theory 
which predominated in the federal convention, not only in two or three 
decisive votes, but generally in the plan adopted. Strict federal prin¬ 
ciples prevailed. The states, as political bodies,, were to be the parties 
federating, and were to remain unchanged, as the actors in the system. 
They were to continue to hold, of original right, all the elective power. 
Each was to choose, from her own citizens and subjects, her represen¬ 
tatives, her senators, and her electors of President; and these, with 
the officers they — acting as agents of the states — should appoint, 
were to be the government. All federal acts, then, were to be the 
acts of the states, through their representatives and servants, and 
the government consisting of these, could but be subordinate to the 
creating and electing sovereignties. 

“We, the People” of New Jersey. — The federal delegates not 
only approved the plan, but they assured their state that her integrity 
and sovereignty were safe. Congress, as the agent of the states, sent 
the plan to New Jersey. The legislature, on the 29th of October, 
1787, enacted that a convention should meet at the capital, and 
“ then and there take into consideration the aforesaid constitution, 
and, if approved of by them, finally to ratify the same, in behalf and 
on the part of this state” [I. Ell. Deb. 320.] 

The convention was held, and the constitution thoroughly discussed 
by sections; but no debates having been preserved,we must resort to 
the journals, political writings, etc., of that day, to learn the prevail¬ 
ing ideas. Here is an extract from an address to the people of the 
state, to induce them to accede : “ By whom are those taxes to be laid 1 
By the representatives of the several states in congress, ... in per¬ 
fect conformity to that just maxim in free governments, that taxation 
and representation should go hand in hand. To what purpose are 
these taxes to be applied 1 To pay the debts, and provide for the 
common defence and general welfare of the united states. Although 
I drew my first breath in New Jersey, and have continued in it dur¬ 
ing my life, firmly attached to its local interest, yet when I consider 
the impossibility of its existence, at present, as a sovereign state , with¬ 
out a union with the others, I wish to feel myself more a citizen of the 
united states than of New Jersey alone.” [American Museum, Nov., 


NEW JERSEY FEDERALIZES HERSELF. 


99 


1787.] The idea was to unite the states , to preserve their sovereignty, 
and the involved blessings of their respective citizens. The following 
extract is instructive : “ The convention of New Jersey was composed 
of accomplished civilians, able judges, experienced generals, and hon¬ 
est farmers.” As “the groundwork of its proceedings” it “resolved 
that the federal constitution be read by sections ; upon which the gen¬ 
eral question shall be taken, whether this convention, in the name and 
behalf of the people of this state, do ratify and confirm the said con¬ 
stitution.” [Massachusetts Centinel, Jan. 6, 1788.] 

New Jersey unanimously ratified as follows : “In convention of the 
state of New Jersey. . . . Now be it known that we, the delegates 
of the state of New Jersey, chosen by the people thereof for the 
purpose aforesaid, having maturely deliberated on and considered the 
aforesaid proposed constitution, do hereby, for and on behalf of the 
people of the said state of New Jersey, agree to ratify and confirm 
the same, and every part thereof. Done in convention, by the 
unanimous consent of the members present, this eighteenth day of 
December, a.d. 1787.” 

The federal constitution and government have no existence or 
power in New Jersey, except by virtue of this ordinance. This, as to 
her, constitutes the league called the federal constitution. 


CHAPTEE VI. 


PENNSYLVANIA FEDERALIZES HERSELF. 

THE SECOND TO RATIFY —VOTE, 46 TO 23 — DATE, DEC. 12, 1787. 

ENNSYLVANIA was the first of the states to call a convention; 



JL though the opponents compelled a month’s debate, thus allow¬ 
ing Delaware to bear off the honor of the first ratification. It was 
in the convention of this state, however, that the first grand contest 
over the new system took place, and the vindication of it is peculiarly 
significant and interesting. The charges were mainly those we have 
already reviewed. One-third of the 69 members issued an able ad¬ 
dress, putting them strongly, and winding up with the assertion that 
“ consolidation pervades the whole instrument.” The system had 
just transpired from what was called a “ secret conclave,” and it was 
alike seemingly novel and really surprising. The people feared that 
it would overshadow and gradually destroy the state, while they were 
intensely anxious to preserve her sovereignty. 

In a subsequent chapter, I shall take Pennsylvania as an exemplar, 
to exhibit the original formation of an Anglo-American state, and 
show how thoroughly separate she was in settlement, organization, 
and government; how the people of the prospective commonwealth 
were habituated to the traditions and ideas of complete political dis¬ 
connection, except as to the sovereign, England : how the people of 
the state were declaredly England’s successor in the sovereignty; how 
all the states joined in acknowledging and guaranteeing each to be 
sovereign [see art. II. of the first federal compact]; how the states¬ 
men, in all they did, were obliged to obey and conform to, and not 
impair and destroy, this sovereignty; and, finally, how the federation, 
being one of republics, named in the compact and remaining un¬ 
changed, must, in the nature of things, be and continue purely volun¬ 
tary. Precisely consonant with these ideas are the explanations of 
the statesmen of Pennsylvania, now to be given. 

She associates as a Sovereign. — Tench Coxe, one of her great 
leaders, and one of the ablest political writers of that day, explained 
that the constitution was to be “the act of the people; ” “yet,” said 
he, “ it is to be done in their capacities as citizens of the several mem- 


PENNSYLVANIA FEDERALIZES HERSELF. 


101 


bers of our confederacy, who are declared to be the people of the 
united states.” [Am. Museum for February, 1788.] With express 
reference to consolidation, he said : “ If the federal convention 
had meant to exclude the idea of ‘ union ’ — that is, of several and 
separate sovereignties joining in a confederacy—they would have said : 
‘We, the people of America; ’ for union necessarily involves the idea 
of competent states, which complete consolidation excludes.” [Ibid.] 
In reference to the senators in congress, he said : “ Each of whom 
will be chosen by the legislature of a free, sovereign , and independent 
state.” [Am. Museum for October, 1787.] And in meeting the 
objection that the new constitution contained no bill of rights, he 
wrote as follows : “ The old federal constitution contained many of 
the same things, which, from error or disingenuousness, are urged 
against the new one. Neither of them has a bill of rights; nor does 
either notice the liberty of the press, because they are already pro¬ 
vided for by the state constitutions; and, relating only to personal 
rights, they could not be mentioned in a contract among sovereign 
states .” [Ibid.] Here we have the idea, so frequently brought to 
view, that personal or private rights are already secured by the social 
compact, the obligation of which requires the body-politic or state to 
protect them; and that the great object of the federal compact was 
to make the securers secure, that is, to unite the states for their com¬ 
mon defence and general welfare. 

James Wilson, a leading member of both the federal and state con¬ 
ventions, one of the very first statesmen of that period, and afterwards 
one of the federal supreme judges, said, in the ratifying convention, 
to allay the fear that the state governments might not be preserved, 
that “ upon their existence depends the existence of the federal plan.” 
In answering the question where sovereignty resided, he said : “ The 
supreme, absolute, and uncontrollable power’is in the people, before 
they make a constitution, and remains in them after it is made. . . . 
The sovereignty resides in the people. This principle settled, they 
can take from the state governments powers with which they have 
hitherto trusted them, and place them in the general government, if it 
is thought they will there be productive of more good.” Of course, 
he could only mean that the authority which formed the state govern¬ 
ment could withdraw and redelegate the said “ powers,” and this could 
but be the state as a commonwealth of people. The following extracts 
show this. He compared “ the advantages and necessity of civil gov¬ 
ernment among individuals ” with those of “ a fedet'al government 
among states” Of course, he knew that in the self-formation of a 
free society of men or states, the integrity of the constituents must 
be preserved. In none of his speeches or writings does he disregard 


102 


FEDERALIZATION. 


this idea. “The united states” said he, “may adopt any one of four 
different systems. They may become consolidated into one govern¬ 
ment, in which the separate existence of the states shall be entirely 
absorbed. They may reject any plan of union or association, and act 
as separate and unconnected states. They may form two or more con¬ 
federacies. They may unite in one federal republic. Which of these 
systems ought to have been formed by the convention % ” After 
showing the inadmissibility of the first three, he proceeds: “ The 
remaining system which the American states may adopt is a union of 
them under one confederate republic. . . . This is the most eligible 
system that can be proposed.” Quoting from Montesquieu, he pro¬ 
ceeds to say : “ Its description is ‘ a convention by which several states 
agree to become members of a larger one which they intend to establish. 
It is a kind of assemblage of societies which constitute a new one , 
capable of increasing by means of further association.’ ” [For the 
above extracts, see II. Ell. Deb. 421-8.] 

In these extracts, Wilson recognizes the states as the absolute ac¬ 
tors, and necessarily the sovereigns, and gives no support to the idea 
of Story, Webster, and Curtis, that a nation ratified and established the 
constitution, though the last named seems to quote from him with great 
partiality in support of the national theory. The reader will please 
note, also, that Wilson here recognizes the idea of republics uniting in 
a republic of republics, i. e. of “ societies which constitute a new one.” 

One more extract will suffice. Early in October, 1787, he said in 
a speech at Philadelphia: “ . . . Let it be remembered, then, that 
the business of the federal convention was not local but general; not 
limited to the views and establishments of a single state, but co¬ 
extensive with the continent, and comprehending the views and estab¬ 
lishments of thirteen independent sovereignties.” [Mass. Centinel, 
October 24, 1787; also Am. Museum.] This and several other equally 
striking passages from Wilson’s speeches, Mr. Curtis failed to quote 
in the “ History of the Constitution.” 

Dr. Franklin, who was at the time the president of Pennsylvania, 
proposed in the federal convention, a second branch of the congress, 
in which “ each state should have equal suffrage,” “ in all cases or 
questions wherein the sovereignties of the individual states may be 
affected, or whereby their authority over their own citizens may be 
diminished.” [V. Ell. Deb. 266-.] 

Whom did she mean by “We, the People.” — Chief Justice 
McKean, afterwards governor, said in the ratifying convention : “ The 
power of this convention is derived from the people of Pennsylvania.” 
The members, he said, had been “ chosen by the people, for the sole 
purpose of assenting to, or ratifying , the constitution proposed for the 


PENNSYLVANIA FEDERALIZES HERSELF. 


103 


future government of the united states, with respect to their general 
and common concerns, or of rejecting it.” “ It has been moved that 
you resolve ‘ to assent to and ratify this constitution.’ Three weeks 
have been spent in hearing objections, . . . and it is now time to 
determine whether they are of such a nature as to overbalance any 
benefits or advantages that may be derived to the state of Pennsyl¬ 
vania by your accepting it.” [II. Ell. Deb. 530.] 

Said James Wilson, in the same body, on this subject: “ The 
single question to be determined is, shall we assent to and ratify the 
constitution proposed 1 As this is the first state whose convention 
has met on the subject, and as the subject itself is of great impor¬ 
tance, not only to Pennsylvania but to the united states , it was 
thought proper, fairly, openly, and candidly to canvass it. ... We 
were sent here to express the voice of our constituents on the sub¬ 
ject.” [II. Ell. Deb. 494.] And in his speech at Philadelphia, Oct. 
6, 1787, in showing that a bill of rights was not needed, he said : “ It 
would have been superfluous and absurd to have stipulated with a fed¬ 
eral body of our own creation , that we should enjoy those privileges of 
which we are not divested, either by the intention or the act that has 
brought that body into existence.” [Mass. Centinel, October 24, 1787.] 

These remarks of McKean and Wilson, which met no dissent, are 
enough to show the idea of all to be that the state, ex mero motu, was 
acting as a sovereign. But the proof is made complete by the ordi¬ 
nance of ratification, the substantial words of which follow : “ In the 
name of the people of Pennsylvania. Be it known unto all men, that 
we, the delegates of the people of the commonwealth of Penn¬ 
sylvania, in general convention assembled, ... by these pres¬ 
ents do, in the name and by the authority of the same people, 
and for ourselves, assent to and ratify the foregoing constitution 
for the united states of America. Done in convention at Philadel¬ 
phia, the 12th of December, 1787.” [I. Ell. Deb. 319.] 

In conclusion, we find that the federal history of Pennsylvania 
gives no support whatever to the Massachusetts school. The false 
and dangerous notions of Dane, Story, Webster, and Curtis, which 
then appeared as charges by foes, were despised and repudiated, and 
the elder and better Massachusetts ideas prevailed, —- that sovereign 
states were the actors in forming and empowering the new system; 
that it was a confederacy of states, or republic of republics, that was 
being formed; that the constitution of it was the concurrent written 
will of the self-associated states ; and that the agency, or adminis¬ 
trative body of the system, was composed exclusively of the members 
and “ subjects ” of the states. 

We find Pennsylvania, then, to be another absolute sovereign of 
our federation. 


CHAPTER VII. 


DELAWARE AND MARYLAND FEDERALIZE THEMSELVES. 

T HESE two states wijl be disposed of together, as they made but 
a small record, owing to the readiness of their accession. But 
their acts of ratification afford us two more proofs of the federal (or 
league-al) system. Let us first give the case of 

DELAWARE. 

The first to Ratify — Vote unanimous — Date, December 7, 

1787. — This little state figures in American history as the first to 
ratify the constitution. Her ready adoption is strong evidence that 
the system was a federation of equals, for she was determined to pre¬ 
serve herself. Moreover, her chief men gave her such explanations 
and assurances as the following from John Dickinson, who had been 
her as well as Pennsylvania’s president, who was a member of the 
federal convention, and one of the great political writers of that 
period. He habitually called the new system “ a. confederation of the 
states,” and he said it was the duty of the congress under the system, 
“to reconcile in their determinations, the interests of several sovereign 
states.” [II. Pol. Writings of J. D.] 

“We, the People” of Delaware. — Space will not permit exten¬ 
sive quotations, so I will conclude her case by presenting her idea of 
what “we, the people,” meant, just as she then, by aud in the act of 
ratifying, impressed it upon the world. The Pennsylvania Gazette, 
of Dec. 20, 1787, says that “while Delaware acted thus speedily, 
Pennsylvania is debating the ground by inches, having been in session 
almost a month, and being yet engaged on the first article.” The 
Massachusetts Centinel, of Dec. 26, 1787, has the following: “Dela¬ 
ware. — The deputies of the state convention of Delaware, met at 
Dover, on Monday, the 3d inst., and, a house being formed, they 
elected James Latimer, Esq., president. On Thursday, they ratified 
the federal constitution by a unanimous vote, and on Friday, every 
member signed the ratification, as follows : We, the deputies of the 


DELAWARE AND MARYLAND FEDERALIZE THEMSELVES. 105 


people of Delaware state, in convention met, having taken into our 
serious consideration the federal constitution proposed and agreed 
upon, by the deputies of the united states, at a general convention 
held at the city of Philadelphia, on the 17th day of September, a. d. 
1787, have approved of, assented to, and ratified and confirmed, and 
by these presents, do, in virtue of the powers and authority to us 
given for that purpose, for, and in behalf of ourselves and constitu¬ 
ents, fully, freely, and entirely approve of, assent to, ratify and con¬ 
firm the said constitution. Done in convention at Dover, Dec. 7, 
1787.” [See also I. Ell. Deb. 319.] 

This was a complete and final act of sovereign will, by a state, as 
such; and when the constitution, according to its terms, went into 
effect, it was this and twelve other like acts that gave it all the life 
and validity it ever had, or could have, as to the thirteen united or 
associated states. And it was from these acts that the entire exist¬ 
ence and jurisdiction of the high and mighty “government” flowed. 
Moreover, this “ government ” was composed personally and entirely 
of the citizens and subjects of the ratifiers. It is, then, obviously 
both fallacious and absurd to say that so far as this constitution goes, 
“ so far state sovereignty is effectually controlled.” It is equally so 
to say that the people, as republics, are not above the constitution 
of government they have created, and elected their own subjects to 
operate or administer. 

MARYLAND. 

The Seventh to Ratify — Vote, 63 to 11 — Date, April 28, 1788. 

— When the convention of this state met, the federal plan had been 
before the people of the country, under close investigation and eluci¬ 
dating debate, for six months. Not only did the advocates every¬ 
where explain the design to be “ a confederation of the states,” but 
“ the people ” could themselves see that the bodies-politic to which 
they all belonged, and to which they had ever yielded absolute obe¬ 
dience in all things, were associating themselves as such, and were 
named and recognized as absolute parties to the compact and actors 
under it. It was plain to Marylanders that Maryland was a republic, 

— that is, that she, as a commonwealth, had all original power, or, 
in other words, the absolute right of self-government; and, moreover, 
that no power was to be out of her but what was delegated, — that is, 
entrusted, for her use and behoof, to an agency. Moreover, the un¬ 
derstanding had become general, that if the constitution should be 
adopted, there would soon be added the new safeguards to state 
integrity already proposed by Massachusetts. 

“ We, the People ” of Maryland. — It was probably these consid- 


106 


FEDERALIZATION. 


erations and reflections that had made the thoughtful and prudent 
people of Maryland so ready to ratify. Determinedly self-governing, 
they reasoned for themselves, and many districts of them, having 
concluded the matter, sent deputies to the convention simply to 
ratify “ the proposed constitution ” “ as speedily as possible,” “ and 
to do no other act.” [II. Ell. Deb. 548.] And the convention 
voted down all attempts at delay and amendment — was only in ses¬ 
sion a few days — and ratified, by a vote of 63 to 11, in the following 
terms: “ In convention of the delegates of the people of the state 
of Maryland, April 28, 1788. We, the delegates of the people of 
Maryland, having fully considered the constitution of the united 
states of America, reported to congress by the convention of deputies 
. . . held in Philadelphia, on the 17th day of September, 1787, of 
which the annexed is a copy, and submitted to us by a resolution of 
the general assembly of Maryland, in November session, 1787, do, for 
ourselves, and in the name, and on the behalf of the people of 
this state, assent to, and ratify the said constitution.” [I. Ell. 
Deb. 324.] 

Luther Martin’s Letter. — The most elaborate and instructive 
argument made against the new system was made by this great Mary¬ 
lander. Pie was her attorney-general, and a member of both federal 
and state conventions. His charges against the compact were mainly 
the same we have constantly seen. He feared lurking causes of 
danger in its various provisions, which, in later years, might emerge 
to destroy liberty, and he warmly urged its rejection. He would, he 
said, make every personal sacrifice, “ if, on those terms only, he could 
procure his country to reject those chains which are forged for it!” 
However, the chains he inveighed against did not exist in the consti¬ 
tution. They were “forged” in the intellects of modern expounders, 
and foisted on the constitution in after years, the unfounded charges 
and arguments made by Martin, Henry, and others to defeat it, being 
the very materials from which, as we shall see, the sophistical 
“chains” were “forged.” [For Martin’s letter, see I. Ell. Deb. 344.] 

The above sovereign act of Maryland was independent, absolute, 
and complete. It gave the federal constitution of government full 
force and effect in Maryland, according to the terms of it. Not a 
shade of life and power did it ever otherwise get. We have here, then, 
the seventh sovereign of the constituted league, — the seventh of the 
thirteen absolute constituents of the republic of republics. 


CHAPTER VIII. 


VIRGINIA FEDERALIZES HERSELF. 

THE TENTH TO RATIFY —VOTE, 89 TO 79 —DATE, JUNE 25, 1788. 

H ER convention was an assembly of great men — all attached to 
the “ Old Dominion ” as to a mother; all determined to pre¬ 
serve intact her integrity, and her sovereign will over her interests 
and destiny; and all fearing a too powerful federal government, 
under which the sovereign rights of the states, and the liberties of 
the people, might be finally lost. The great, all-comprehensive 
idea of the constitutionists, and the convention was, that Virginia 
and her sister states were creating a federal system, to which they 
were to give, each a separate and independent sanction, and sufficient 
“ delegation ” of power for its purposes. 

As in other states, the system was attacked from the fear that it was 
pregnant with the monster consolidation. Patrick Henry was the 
most active and denunciatory; but George Mason and others ably 
backed him. They assailed the very clauses as dangerous and treason¬ 
able to liberty and self-government, from which Dane, Webster, and 
Story have since deduced consolidation or national sovereignty. For 
instance, they attacked the phrase in the preamble—“We, the 
people of the United States, do ordain and establish this constitu¬ 
tion ” — as reducing states to subordination, and creating a na¬ 
tional supremacy over them; the clause making the constitution, 
laws, and treaties “ the supreme law of the land,” as a specific abdica¬ 
tion of sovereignty by the states to the nation; and the clause giving 
certain power over the militia, as giving the general government 
unlimited power and means to execute its will, — even over states. 
Other objections were made, but these were the main ones. They 
were all, in fact, misrepresentations, and were then and there fully 
exposed and refuted by Madison, Randolph, Pendleton, Marshall, 
Nicholas, Corbin, Innes, and others. 

Virginia to remain a Sovereign. — Edmund Pendleton, the chan¬ 
cellor of the state, and the president of the convention, said, in reply 
to Henry, Mason, and others, “ If the union of the states be necessary, 
government must be equally so.” “ The people are the fountain of 


108 


FEDERALIZATION. 


all power. They must, however, delegate it to agents, because . . . 
they cannot exercise it in person. . . . When we [the people of the 
state] were forming our state constitution, we were confined to local 
circumstances. In forming a government for the union, we [the same 
people] must consider our situation as connected with our neighboring 
states. . . . If we find it to our interest to be intimately connected 
with the other twelve states , to establish one common government, and 
bind in one ligament the strength of thirteen states, we shall find it 
necessary to delegate powers proportionate to that end; for the dele¬ 
gation of adequate powers in this government, is no less necessary 
than in our state governments. To whom do we delegate these 
powers'? To our own representatives. Why should we fear greater 
dangers from our representatives there, than from those we have here ? 
. . . Every branch [of government] is formed on the same principle, 
preserving throughout, the representative responsible character.” [III. 
Ell. Deb. 298-9.] He makes an explicit assertion of state sovereignty 
in the union as follows : “ The impossibility of calling a sovereign state 
before the jurisdiction of another sovereign state, shows the propriety 
and necessity of vesting this tribunal [the federal court] with the de¬ 
cision of controversies to which a state shall be a party.” [Ibid. 549.] 

James Madison had previously written in number 46 of the Feder¬ 
alist : “ The federal and state governments are, in fact, but different 
agents and trustees of the people, instituted with different powers. . . . 
The ultimate authority — wherever the derivative may be found — 
resides in the people alone.” And he explained in the Virginia con¬ 
vention, as well as in the Federalist, that it is “the people as composing 
thirteen sovereignties ,” who possess this ultimate authority, and “ are 
parties to ” the constitution. [III. Ell. Deb. 94.] In number 40 of 
the Federalist, he said, “ The states were regarded as distinct and 
independent sovereigns ... by the constitution proposed.” See also 
number 39 for his full explanation. 

James Innes, an able jurist and statesman, said, in the same con¬ 
vention, “ After five months spent in tedious and painful investigation, 
they [the federal convention] with great difficulty devised the paper 
on the table. And it has been adopted by every state which has con¬ 
sidered and discussed it. . . . Eight states have exercised their sove¬ 
reignty in ratifying it. Let us try it. Experience is the best test. It 
will bear equally on all the states, from New Hampshire to Georgia. 
... I consider congress as ourselves, as our fellow-citizens, and no 
more different from us, than our delegates in the state legislature.” 
[III. Ell. Deb. 636-7.] 

John Marshall, the great jurist, afterwards for many years the 
distinguished chief justice of the federation, said, “When the govern- 


VIRGINIA FEDERALIZES HERSELF. 


109 


ment is drawn from the people, and depending on the people for its 
continuance, oppressive measures will not be attempted, as they will 
certainly draw on their authors the resentment of those on whom they 
depend. On this government, thus depending on ourselves for its 
existence, I will rest my safety. . . . United we are strong — divided 
we fall.” [III. Ell. Deb. 420.] “ If you adopt it, what shall restrain 

you from amending it, if, in trying it, amendments shall be found 
necessary. The government is not supported by force, but depending 
upon our free will. When experience shall show us any inconvenience, 
we can correct it. . . . Let us try it, and keep our hands free to change 
it when necessary.” In reference to the alleged fear that “ congress 
may prostitute their powers to destroy our liberties,” he said, “ This 
goes to the destruction of all confidence in agents.” And, referring 
to Virginia’s right to “ resume ” her powers, if abused, he said, it is 
“ a maxim that those who give may take away. It is the people that 
give power, and can take it back. What shall restrain them % They 
are the masters who give it, and of whom the servants hold it.” Re¬ 
plying to Mr. Henry, as to the concurrent powers of taxation, he said : 
“ It is an absurdity, says the worthy member, that the man should 
obey two masters, — that the same collector should gather taxes for 
the general government, and the state legislature. Are they not both 
the servants of the people % Are not congress and the state legis¬ 
latures the agents of the people, and are they not to consult the good 
of the people]” [Ibid. 227, 233.] And while defending the federal 
jurisdiction of cases between a state and citizens of another state 
against the vehement attacks of Henry and Mason, he said he hoped 
that no one would “ think that a state would be called at the bar of 
the federal court. ... It is not rational to suppose that the sovereign 
power should be dragged before a court.” [Ibid. 555.] 

Gov. Randolph, Mr. Corbin, and the Messrs. Nicholas, all able 
statesmen, explained the new system substantially to the same effect. 
Said Randolph : “ If you say that notwithstanding the most express 
restrictions, they [congress] may sacrifice the right of the states, then 
you establish another doctrine, — that the creature can destroy the 
creator, which is the most absurd and ridiculous of all doctrines.” 
[Ibid. 363.] Indeed no advocate ever seemed to doubt that (as Mad¬ 
ison stated) they were making “a government of a federal nature, 
consisting of many co-equal sovereignties .” [Ibid. 381.] 

“Consolidation.” — A few remarks and extracts on this subject 
may be instructive. The statesmen were then, as now, men of the 
people, speaking in common parlance alike on the hustings and in 
legislative debate. In making charges against the new system, one 
said, the government; another, the union \ and a third, the states, 


110 


FEDERALIZATION. 


would be “ consolidated ” by it, — all meaning substantially the same 
thing, though “government,” “union,” and “states,” are entirely dif¬ 
ferent entities. It was'the “states” that the system’s defenders 
thought safe from “consolidation,” while they really desired this 
“ consolidation ” for the “ union; ” that is to say, the making of it 
more solid, strong, and enduring, or, in other words, “ a more perfect 
union ” — to use the phrase of the preamble — than the previous one. 
And this is evidently what the convention meant, in the letter of 
Washington, written by their “ unanimous order,” reporting their plan 
to congress, by the expression: “We kept steadily in view . . . the 
consolidation of our union; ” for the said convention had just framed 
Article VII. — the one characterizing the system, which declared that 
the constitution was to be established by, and “ between the states, 
ratifying the same,” through their respective conventions. 

In fact, no one favored the consolidation of the states; but many 
feared and charged that the powers and means, and alleged supreme 
discretion of the new government, would enable it gradually to sup¬ 
plant the state governments, and degrade the states themselves to 
provinces or municipalities, subject to its imperial will. 

Said Chancellor Pendleton, the president, in reply to Henry: 
. . . “But it is represented to be a consolidated government, . . . 
which so extensive a territory as the united states cannot admit of, 
without terminating in despotism. If this be such a government, I 
will confess, with my worthy friend, that it is inadmissible.” . . . He 
then proceeded to show that it is not such a government, and cannot 
be changed to such a one. “ It is,” said he, “ the interest of the 
federal to preserve the state governments. . . . Unless there be state 
legislatures to continue the existence of congress, and preserve order 
and peace among the inhabitants, this general government, which 
gentlemen suppose will annihilate the state governments, must itself 
be destroyed.” [Ibid. 40.] Said Henry Lee, of Westmoreland, on 
the same occasion : “If this were a consolidated government, ought it 
not to be ratified by a majority of the people, as individuals, and not 
as states 1 Suppose Virginia, Connecticut, Massachusetts, and Penn¬ 
sylvania had ratified it; these four states, being a majority of the 
people of America, would, by their adoption, have made it binding on 
all the states, had this been a consolidated government. But it is 
only the government of those seven states who have adopted it. If 
the honorable gentleman [Mr. Henry] will attend to this, we shall 
hear no more of consolidation.” [Ibid. 180.] 

Madison expressed the same views [Ibid. 94, 96; Federalist, Art. 
39], so with the Messrs. Nicholas, Gov. Randolph, and others; but as 
no friend of the system dissented, further quotation is unnecessary. 


VIRGINIA FEDERALIZES HERSELF. 


Ill 


What Virginia meant by “ we, the People.” — Chancellor Pen¬ 
dleton said : “ This constitution was transmitted to congress by that 
convention; by the congress transmitted to the legislature; by them 
recommended to the people. The people have sent us hither to de¬ 
termine whether this government be a proper one or not.” [III. Ell. 
Deb. 6.] Was this “the people ” of the united states 1 The reply of 
Henry Lee, of Westmoreland, to Patrick Henry, is instructive and 
decisive. The latter had demanded: “ Who authorized them [the 
convention] to speak the language of we, the people, instead of we, the 
states ? States are the characteristics and the soul of a confederation. 
If the states be not the agents [actors] of this compact, it must be 
one great, consolidated, national government, of the people of all the 
states.” [Ibid. 22.] Said Lee in reply : “This system is submitted to 
the people for their consideration, because on them it is to operate, if 
adopted. It is not binding on the people until it becomes their act. 
It is now submitted to the people of Virginia. If we do not adopt it, 
it will always be null and void as to us” [Ibid. 42.] 

George Nicholas said, the time is come when “ this state is to 
decide this important question of rejecting or receiving this plan of 
government.” [Ibid. 7.] Gov. Randolph said: “Were I convinced 
that the accession of eight states did not render our accession also 
necessary to preserve the union, I would not accede till it should be 
amended.” [Ibid. 67.] Zachariah Johnson said, “ the great and wise 
state of Massachusetts has taken this step; the state of Virginia might 
safely do the same.” [Ibid. 649.] Mr. Stephen said, “ we are about to 
determine whether we shall be one of the united states or not.” [Ibid. 
644.] James Innes said, “ eight states have exercised their sovereignty 
in ratifying it. . . . Let us try it. Experience is the best test.” [Ibid. 
636-7.] John Marshall, as we have seen, called the state “the 
sovereign power.” [III. Ibid. 535.] And James Madison said, “ each 
state, in ratifying the constitution, is considered as a sovereign body,” 
and “ no state is bound by it without its own consent .” [III. Ibid. 94 ; 
Fed. No. 39.] 

But enough has been quoted, the arguments of the constitutionists 
being all to the same purpose. The contest was long and animated. 
The enemies, by the false ascriptions that in subsequent years were 
made so attractive by the logic and eloquence of a Webster, though 
overwhelmingly beaten in argument, were barely overcome in voting, 
— the majority for ratification being only 10 in a house of 168. The 
enacting words of the ordinance are as follows : “We, the delegates 
of the people of Virginia, duly elected, . . . and now met in con¬ 
vention, ... in the name and behalf of the people of Virginia, 
do, by these presents, assent to, and ratify the constitution, 


112 


FEDERALIZATION. 


recommended on the 17th day of September, 1787, by the federal 
convention, for the government of the united states, hereby announcing 
to all those whom it may concern, that the said constitution is binding 
upon the said people, according to an authentic copy hereto annexed. 
Done in convention this 26th day of June, 1788.” 

“The said constitution” then, and by that act, became “binding 
upon the said people" of Virginia. She then, by her own peculiar 
and exclusive will, gave that constitution of government all the life 
and jurisdiction it ever had or could have in Virginia. Nothing 
could be plainer. Now, is it not incredible that the statesmen, 
judges, and historians, of the Massachusetts school, should ignore or 
suppress the sovereign act of Virginia (and the similar one of Massa¬ 
chusetts), and assert that the nation made the constitution, and that 
it was not made by the people of the several states! They also 
ignore or suppress the all-important fact, that the thirteen states 'were, 
at that moment, under a solemn compact — all with each and each 
with all — that “ each state retains its sovereignty , freedom, and inde¬ 
pendence,” and hence that they did not and could not act otherwise 
than as sovereigns, and that no aggregate people did or could exist, 
with authority to put a general constitution in force in and over one 
of these states. If thirteen sovereign states did, a sovereign nation 
did not, then exist. If the former did then dispense pow 7 er, the latter 
did not. 

Making Assurance doubly sure. — Furthermore, Virginia, in her 
absolutely sovereign action by convention, aiming to guard against 
those dangers to her integrity, which Massachusetts had been so care¬ 
ful to forefend, and which she herself was so earnestly premonished 
of, seconded the demand of Massachusetts on the states for amend¬ 
ments, as New Hampshire simultaneously did, — the main one being 
“that each state shall respectively retain every power, jurisdiction, and 
right, which is not, by this constitution, delegated to the united 
states.” This, somewhat modified in language, though not in import, 
was afterwards adopted by the states. Again, the convention, speak¬ 
ing with direct reference to federal functionaries, declared “ that all 
power is invested in, and derived from, the people; and that magis¬ 
trates are, therefore, their trustees and agents, at all times amenable 
to them." And, finally, she embodied in the ordinance of ratification, 
still speaking for herself, the following declaration : “ That the powers 
granted under the constitution, being derived from the people of the 
united states [may] be resumed by them, whenever the same shall be 
perverted to their injury or oppression.” [I. Ell. Deb. 327.] 

Her ideas were, in short, that all power is in the people; the peo¬ 
ple are states; each state retains all she does not delegate; all mag- 


VIRGINIA FEDERALIZES HERSELF. 


113 


istrates are their trustees and agents; and the people that delegate 
powers may withdraw them. These truths are fundamental and 
sacred; they are in all bills of rights; they are state sovereignty, and 
only mendacity itself can unblushingly deny them ! 

The last above quoted passage, Judge Story, in his “Commenta¬ 
ries,” uses as a leading proof that these “ powers ” are “ derived from 
the people ” as a nation, when, as he knew, every word and action of 
Virginia contradicts it; and the passage itself is susceptible of no 
such interpretation, — the assertion being, as the fact is, that the 
“ powers ” are “ derived from the people of the . . . states.” All the 
states — including Oregon, Maine, Texas, Alaska, Greenland, and 
Patagonia — “ resuming ” — or “ reassuming ,” as New York has it — 

the powers ” delegated by Virginia, is a solecism, which would be 
amusing were it not a subject of deep regret. 

Such perversions are hardly entitled to respectful exposure; but 
let us plod patiently on. Look at the ludicrous position and silly act 
these Massachusetts philosophers attribute to Virginia, as well as to 
their own state. In this trying and solemn hour, when high debate 
was raging, and all hearts were fervently wishing to secure her “pearl 
of great price,” — sovereignty, and the freedom of her children, and 
her children’s children, against consolidation and arbitrary power, 
Virginia, by her great statesmen and lawyers — “and there were 
giants in those days ” — forgot herself, and her simultaneous sove¬ 
reign act, and declared that the nation gave, and could take away, the 
powers granted. While denying and guarding against it, she con¬ 
fessed an outside sovereignty that destroyed her. While engaged in 
preserving her political life, she committed the most inconsistent and 
remarkable suicide in history! 

Now let us conclude the case of Virginia, by contemplating for a 
moment the conduct of Massachusetts towards her, as it will appear 
in the pages of our Gibbon, — if she be sponsor for her misteaching 
sons, and fail to lead, in restoring the commonwealths to their old 
status and supremacy. Both foreboded the same dangers. They 
asserted, acted with, and secured their sovereignty in the same mode, 
— the latter leading the way. They pledged solemn faith for mutual 
protection, declaring and guaranteeing each other to be “ sovereign, 
free, and independent.” 

Virginia kept the faith ! She was incapable of doing otherwise. But 
Massachusetts, to promote selfish ends, became the Peter the Hermit 
of a new crusade. She perverted the faith and the solemn compacts 
of the fathers, inflamed the North to hunger and thirst for Southern 
carnage and blood, and finally led an overwhelming host to dragoon 
the South into submission, and to darken her sunny landscapes with 

8 


114 


FEDERALIZATION. 


desolation and mourning. “The land was as the garden of Eden 
before her, and behind her, a desolate wilderness ! ” Yes; she issued 
forth from her own unassailed and unbroken walls, which shielded her 
own plenty and peace, and, like a demon of destruction, razed Vir¬ 
ginia’s citadel to the earth, and drove the ploughshare of ruin through 
all its foundations! 




CHAPTER IX. 

SOUTH CAROLINA AND GEORGIA FEDERALIZE THEMSELVES. 

I X South Carolina, the new system was strongly opposed, and much 
discussed, while in Georgia, the accession was ready and unreluc- 
tant. Let us take first the case of 

SOUTH CAROLINA. 

The Eighth to Ratify — Vote, 149 to 73— date, May 23,1783. — 

Not less decisively speaks the record of this state. All her sons were 
opposed to any interference with state sovereignty, — the enemies of 
the new system charging danger, and the friends declaring the fear 
to be groundless. Rawlins Lowndes was the leading opponent. So 
earnest was he, that, seeming to look forward to the lost liberties of 
his state, to justify his opposition and prove his words of warning true, 
he wished his epitaph to be : “ Here lies the man that opposed the 
constitution, because it was ruinous to the liberty of America.” Were 
he, Patrick Henry, Luther Martin, and the other opponents, wiser 
than the rest of the fathers ] Did they really find the defects and 
dangers they charged'! Or did they fear the alleged propensities 
of the Northern people, and the perversions of their expounding 
statesmen 1 

The leading constitutionists were Charles Pinckney, General C. C. 
Pinckney, John Rutledge, Pierce Butler, Edward Rutledge, J. J. 
Pringle, and others. They encountered and overthrew the same kind 
of opposition, which, as we have seen, was rife in the other states. The 
discussion took place both in the legislature and the convention. 

The Explanation of the System to her. — Charles Pinckney, 
a member of both federal and state conventions, and one of her most 
distinguished statesmen, said that “ all power of right belongs to the 
people; that it flows immediately from them, and is delegated to their 
officers for the public good ; that our rulers are the servants of the 
people, created for their use, and amenable to their will.” [IV. Ell. 
Deb. 319.] A “distinguishing feature in our union,” said he, “is its 


116 


FEDERALIZATION. 


division into individual states, differing in extent of territory, man¬ 
ners, population, and products.” [Ibid. 323.] 

He further said, the condition of inter-state and foreign commerce 
made necessary “ some general and permanent system, which should 
at once embrace all interests, and, by placing the states on firm and 
united ground, enable them effectually to assert their [not the nation’s] 
commercial rights.” [Ibid. 254.] He said further, there is an au¬ 
thority “absolute and uncontrollable,”from which there is no ap¬ 
peal,”— “the sovereign or supreme power of the state;” and that 
“ with us the sovereignty of the union is with the people ” [Ibid. 
327], meaning, with Madison, the people of the states whose creation 
the government was to be, and who were then delegating “ powers ” 
to the said creation. For example, he said “ the states ought not to 
entrust important rights ” to one legislative house, and that, therefore, 
the convention thought it “ their duty to divide the legislature into 
two branches, and, by a limited revisionary power, to mingle in some 
degree the executive in their proceedings.” [Ibid. 256.] 

Furthermore, he cited approvingly the contention of the small 
states in the federal convention, “ that as the states were the pillars 
upon which the general constitution must ever rest, their state gov¬ 
ernments must ever remain ; that however they may vary in point 
of territory or population, as political associations they were equal.” 
[Ibid. 256.] 

And, finally, he characterized the new system as “ a federal repub¬ 
lic,” and said : “To what limits such a republic might extend, or how 
far it is capable of uniting the liberty of a small commonwealth with 
the safety of a peaceful empire ; or whether, among co-ordinate powers , 
dissensions and jealousies would not arise, which, for want of a com¬ 
mon superior , might proceed to fatal extremities, are questions upon 
which he did not recollect the example of any nation to authorize us 
to decide, because the experiment has never yet been fairly made. 
We are now about to make it upon an extensive scale, and under circum¬ 
stances so promising that he considered it the fairest experiment that 
had ever been made in favor of human nature.” [Ibid. 262.] It is 
beyond question, then, that Charles Pinckney considered the states 
as “ co-ordinate powers,” having no “ common superior.” No “ nation 
of people,” distributing their powers between their general govern¬ 
ment and their several state governments was known to him ! 

General C. C. Pinckney, a member of both conventions, after¬ 
wards in several high offices, and finally the federal party’s candidate 
for the presidency, said, near the close of the federal convention, after 
the character of the new constitution had been agreed on, to wit, on 
September 3, 1787 : “The first legislature will be composed of the 


S. CAROLINA AND GEORGIA FEDERALIZE THEMSELVES. 117 


ablest men to be found. The states will select such to put the gov¬ 
ernment into operation.” [V. Ell. Deb. 506.] He here recognized 
what the constitution did, viz., that the states, as parties to and act¬ 
ors in the new system, were to govern themselves; that is to say, 
they — being republics — were, of original right, to elect senators, 
representatives, and president, who, as agents of the said states, were, 
with such functionaries as they should provide for and appoint, to 
govern, using the “ powers ” “ delegated ” or entrusted to them for that 
purpose by the said states — the said senators to be elected by the 
respective legislatures of the states, and the representatives and presi¬ 
dent, pro tanto, by the respective peoples thereof. This is precisely 
our system, — a union of self-governing states. Another remark of 
General Pinckney in the federal convention is apposite. Mr. Martin 
moved to vary the article relating to the importation of certain per¬ 
sons, so as to allow a prohibition or tax. Mr. Ellsworth remarked 
that “ the states were the best judges of their particular interest. The 
old confederation had not meddled with this point, and he did not see 
any greater necessity for bringing it within the policy of the new one!' 
Mr. Charles Pinckney said if this is done “ South Carolina can never 
receive the plan.” General Pinckney said it would be unjust “tore- 
quire South Carolina and Georgia to confederate on such unequal 
terms.” [V. Ell. Deb. 456*, et seq.~\ We find, then, that he thought 
— after the federal plan had been decided on, to wit, on the 26th of 
August, 1787—that South Carolina and Georgia were “to confed¬ 
erate ” with the other states on “ terms.” 

Let us now see what he afterwards said in the legislature of South 
Carolina. He stated the objects of the federal convention to be “to 
strengthen the union,” and “ give greater powers to the federal gov¬ 
ernment.” To the charge that the federal convention had exceeded 
its powers, he replied that “ the present constitution is but a propo¬ 
sition, which the people may reject;” but he “conjured them to 
reflect seriously before they did reject it, as he did not think our state 
would obtain better terms by another convention.” Terms of union 
between states , again! Said he further : “ The delegations of Jersey 
and Delaware . . . acquiesced in it; ” and so satisfied are “ the peo¬ 
ple of those states, that their respective conventions have unanimously 
adopted the constitution.” [IV. Ell. Deb. 282.] 

His idea that communities as such, and not the aggregate people of 
them, were the constituents of the union, is indicated in all the above 
extracts, but more notably in the following: “ The Southern states 
are weak ; . . . we are so weak by ourselves, we could not form a 
union strong enough for effectually protecting each other. Without 
union with the other states , South Carolina must soon fall. . . . 


118 


FEDERALIZATION. 


Should we not endeavor to form a close union with the Eastern states , 
who are strong ? ... If our government is to be founded on equal 
compact, what inducement can they possibly have to be united with 
us, if we do not grant them some privileges with regard to their 
shipping ? Or, supposing they were to unite w T ith us without having 
these privileges, can we flatter ourselves that such union would be 
lasting'?” [Ibid. 283-4.J Again: “We do not enter into treaties 
as separate states, but as united states; and all the members of the 
union are answerable for the breach of treaty by any one of them.” 
[Ibid. 279.] 

The following is decisive proof of General Pinckney’s belief that the 
states, as political communities, were sovereign, and acted as such in 
forming the union : “It is admitted on all hands that the general 
government has no powers but what are expressly granted by the con¬ 
stitution, and that all rights not expressed, were reserved by the sev¬ 
eral states” [Ibid. 286.] The same principle is repeated as follows : 
“ The general government has no powers but what are expressly 
granted to it; therefore it has no power to take away the liberty of 
the press; ... by delegating express powers, we certainly reserve to 
ourselves every power and right not mentioned in the constitution.” 
[Ibid. 315.] See also p. 10 supra. 

These passages, from the indelible -record, show that General 
Pinckney regarded the constitution as “ a compact ” between states; 
the system provided for, as a union or “ confederation ” of states, and 
the states themselves, as the sovereign delegators and reservers of 
power. He knew the people, as states, to be acting with entire vol¬ 
untariness, and, as separate sovereigns, ratifying what they, as collec¬ 
tive sovereigns, had framed. 

But the perverters, to support their false theory that a sovereign 
nation made the union, have culled, from the very midst of the above 
expressions, the statement of General Pinckney that the Declaration of 
Independence proves that “ there never was any individual sovereignty 
of the several states.” [Ibid. 301.] In a future chapter, I shall show 
that General Pinckney probably referred to the government incorpo¬ 
rated in the state constitution, as the state, for this to the most of 
people was the only visible embodiment of the idea of a state; it 
acted in every manner of state action ; and, in common parlance, it 
was called the state, and was accredited with sovereignty, particularly 
by the functionaries of it; while in reality it was a mere agency, the 
sovereignty, or right of government, residing permanently in the 
society of people. If he did not mean as I indicate, he was, first, 
“ blowing hot and cold with the same mouth; ” second, speaking 
absurdly, for the states, as political bodies, occupied the whole ter 


S. CAROLINA AND GEORGIA FEDERALIZE THEMSELVES. 119 


ritory, and included and controlled all the people; and they were 
then placing over the said people, absolutely, their new “ supreme 
law; ” third, mendacious, for the states had then a solemn league 
and covenant, declaring and guaranteeing that “ each state retains her 
sovereignty; ” and not only was George III. required by the Ameri¬ 
can commissioners to “ acknowledge ” on this basis, as he did, but 
the fathers themselves, in establishing the new plan, acted upon 
it, as they were compelled to do, being citizens and subjects of 
such sovereignties; fourth, traitorous, for, while assuring his sove¬ 
reign that the new plan was her “ compact/’ her “ confederation,” 
her “ supreme law,” he was, Judas-like, aiming to place her under a 
yoke! 

John Rutledge, a member of both federal and ratifying conven¬ 
tions, and afterwards chief justice of the union, referring to a remark 
of Mr. Lowndes, said that, instead of “ the sun of the country being 
obscured by the new constitution, . . . the sun of this state, united 
with twelve other suns, would exhibit a meridian radiance astonishing 
to the world.” [Ibid. 312.] He said, in the federal convention, in 
reference to the proposal to give congress the power to negative all 
state laws, it might think interfered “with the general interests and 
harmony of the union : “ If nothing else, this alone would damn, and 
ought to damn, the constitution. Will any state ever agree to be 
bound hand and foot in this manner? It is worse than making mere 
corporations of them, whose by-laws would not be subject to this 
shackle.” [V. Ell. Deb. 368.] 

Hon. J. J. Pringle, attorney-general, said the treaties “ will affect 
the individuals equally of all the states. If the president and senate 
make such as violate the fundamental laws, and subvert the constitu¬ 
tion, or tend to the destruction of the happiness and liberty of the 
states , the evils . . . will be removed as soon as felt, as those who are 
oppressed have the power and means of redress ; ” that is to say, the states 
are absolute, and have the control of the powers they delegate, and 
the unlimited right of self-defence. [Ibid. 270.] 

Hon. Edward Rutledge, a signer of the Declaration of Indepen¬ 
dence, and one of the governors of the state, said, in the legislature: 
“ But the gentleman [Mr. Lowndes] has said that there were points in 
this new confederation which would endanger the rights of the people.” 
He then proceeded to speak of the states as the parties to and the 
actors in “ this new confederation; ” and the functionaries thereof, as 
representatives acting with a “ trust.” [Ibid. 276.] 

"Wa, the People” of South Carolina. — The principal debate, 
which is preserved, took place in the legislature, which finally resolved, 
unanimously, “ that a convention of the people should be called for 


120 


FEDERALIZATION. 


the purpose of considering, and ratifying or rejecting, the constitution 
framed for the united states.” [Ibid. 316.] 

Alexander Tweed said : “ The constitution now lies before us, to 
wait our concurrence or disapprobation. We, sir, as citizens and free¬ 
men, have an undoubted right of judging for ourselves.” [Ibid. 333.] 

Hon. Jacob Read “urged a concurrence with those states which 
were in favor of the new constitution.” [Ibid. 286.] 

Charles Pinckney said : “We are called upon to execute an im¬ 
portant trust, — to examine the principles of the constitution now 
before you, and, in the name of the people, to receive or reject it.” 
[Ibid. 332.] 

But enough has been quoted ; for there was not a word of dissent, 
in either the legislature or the convention, on the part of any friend 
of the new system. Friend and foe alike deprecated the principles 
since advocated by the Massachusetts school, — if dogmas so unprin¬ 
cipled can be called principles at all. 

The convention finally ratified the constitution by a vote of 149 to 
73, the substantial words of the ordinance being as follows^: “In con¬ 
vention of the people of the state of South Carolina, by their rep¬ 
resentatives, held in the city of Charleston. . . . The convention, 
having maturely considered the constitution or form of government 
reported to congress by the convention of delegates, . . . and sub¬ 
mitted to them by a resolution of the legislature, ... in order to 
form a more perfect union, establish justice, insure domestic tran¬ 
quillity, provide for the common defence, promote the general welfare, 
and secure the blessings of liberty, . . . do, in the name and behalf 
of the people of this state, hereby assent to and ratify the said 
constitution. Done in convention, the 23d day of May, a.d. 1788.’* 
[I. Ell. Deb. 325.] 

Here we see that, by this act of ratification, South Carolina estab¬ 
lished the constitution within her territory, and subjected her citizens 
to its operation, thus giving its functionaries their only jurisdiction. 
As this jurisdiction flows solely from the constitution, and is subject 
to it, it is necessarily subject to the will that established it. There 
was no sign or hint of any other will, — certainly none of a national 
will. Nay, more, if the existence and binding force of the said con¬ 
stitution, as the supreme law of South Carolina, were ever called in 
question, the only possible proof of the same would be the above act 
of ratification, with the constitution annexed. How absurd, then, it 
is to say that South Carolina was not to be and remain a sovereign in 
the union. 

This state also joined Massachusetts in demanding amendments for 
the more complete security of state integrity and sovereignty, par- 


S. CAROLINA AND GEORGIA FEDERALIZE THEMSELVES. 121 


ticularly the one declaring that “ the states retain every power not 
expressly . . . vested in the general government.” [I. Ell. Deb. 325.] 

Not one word of support is there in the records of this state for the 
assertions of Dane, Story, Webster, and Curtis ! They are contradicted 
in the most direct and positive manner! 

GEORGIA. 

The Fourth to ratify —Vote, unanimous — date, Jan. 2,1788. —- 

There was little or no opposition in this state, and no demand for 
amendments. Her convention, being called to consider the proposed 
plan, and the accompanying letter and resolutions, “ and to adopt or 
reject any part or the whole thereof” [Ibid. 323], unanimously ratified 
the constitution, the substance of her ordinance being as follows: 
“ Now know ye that we, the delegates of the people of the state of 
Georgia, in convention met, pursuant to the provisions of the legis¬ 
lature aforesaid, having taken into our serious consideration the said 
constitution, . . . by these presents do, in virtue of the powers and 
authority given us by the people of the said state for that purpose, for 
and in behalf of ourselves and our constituents, fully and entirely 
assent to, ratify, and adopt the said constitution. Done in con¬ 
vention, at Augusta, in the said state, on the 2d day of January,. 
a.d. 1788.” [Ibid. 323.] 

As to Georgia, the constitution of government was completed by 
this act; and it was done solely “ in virtue of the powers and author¬ 
ity ” “given by the people of the said state,” and not by the people 
of any nation. This alike shows that the phrase “ we, the people,” 
meant Georgia, and destroys the whole theory of the Massachusetts 
school. 


CHAPTER X. 


NEW HAMPSHIRE FEDERALIZES HERSELF. 

THE NINTH TO RATIFY —VOTE, 57 TO 46 —DATE, JUNE 21, 1788, 

T HIS state, being the ninth to ratify, made the complement re¬ 
quired for the establishment of the constitution; for Article VII. 
declared that “the ratification of the conventions of nine states shall 
be sufficient for the establishment of this constitution, between the 
states so [i. e. by conventions] ratifying the same.” Nine successive 
acts of ratification, then — i. e. the acts of nine separate wills, each 
operating voluntarily, and with a perfect right to ratify or reject — 
were to establish and complete the constitution. No single act, 
movement or exercise of will could, by any possibility, have done it; 
and the record throughout exhibits the action of nine independent 
wills, and no sign of a single and exclusive one. “ The people ” were 
organized as states, and the states were “ the people.” As bodies-politic, 
composed of people, they, and they alone, ratified. The idea of 
their unity of organization, will, and deed, as a nation, is entirely 
false. Article VII. shows that ratifications were to establish; that 
states were to ordain the ratifications; and, therefore, that the 
states were to “ ordain and establish this constitution for the united 
[i. e. associated] states of America.” 

New Hampshire’s Assertion of her Statehood. — She was a re¬ 
public, — that is, a community with the absolute right of self-govern¬ 
ment ; and there was no sign of any authority above her. The record 
shows that she acted solely of her own motion; and at that moment, 
the solemn covenant called the articles of confederation, bound all the 
states to the recognition of her sovereignty, for their declaration was, 
that “ each state retains her sovereignty, freedom and independence.” 
[Article II.] Necessarily she was exercising this sovereignty in mak¬ 
ing the new constitution. She acted as a commonwealth exclusively, 
and no power on earth constrained or influenced her. All the fathers 
asserted or took for granted, that the states were acting in this sove¬ 
reign capacity. Moreover, the people of New Hampshire had, in 
1784, by social compact, “formed themselves” — to use their own 
words — “ into a free, sovereign and independent body-politic, or state. 


NEW HAMPSHIRE FEDERALIZES HERSELF. 


123 


by the name of* the state of New Hampshire.” [Const. N. H., Part 
II., Art. I.] This is the character by which she passed, by name, into 
the union [Fed. Const., Art. I., § 2], and her reiteration of it in 1792, 
several years after the constitution was established, proves that she 
considered herself sovereign in the union. And, indeed, this self¬ 
description stands to the present day, as does the following remarkable 
declaration : “ The people of this state have the sole and exclusive right of 
governing themselves as a free, sovereign and independent state ; and do, 
and forever hereafter shall, exercise and enjoy every power . . . which 
is not, and may not hereafter be, by them, expressly delegated to the 
united states in congress assembled.” [Const. N. H., Bill of Rights. 
Art. VII.] And, apparently for the sake of greater emphasis, she 
declares that her people have the right, whenever they deem it neces¬ 
sary to prevent the ends of government from being perverted, or to 
preserve public liberty, “ to reform the old, or establish a new govern¬ 
ment ; ” and that “ all magistrates and officers of government ” are 
her people’s “ substitutes and agents, and at all times accountable to 
them.” [Ibid., Arts. VIII-X.] 

Here we have her self-assertion. No sovereign of Europe could be 
more autocratic, and her ratification was precisely in character. Let 
us see. 

“ We, the people ” of New Hampshire. — Her convention was 
called to examine, and to ratify, or reject, the constitution proposed. 
It was most deliberate in action, adjourning at one time for several 
months. But for this adjournment, and the timely supervention of a 
general understanding in regard to conservative amendments, as well 
as the favorable action and influence of other states, the constitution 
would have been probably rejected. As it was, she ratified by a vote 
of 57 to 46, —the substantial words of her ordinance being as follows : 
“ In convention of the delegates of the people of the state of New 
Hampshire, June the 21st, 1788. The convention, having impartial¬ 
ly discussed and fully considered the constitution for the united states 
of America, reported to congress by the convention, . . . and sub¬ 
mitted to us by a resolution of the general court of said state, . . . 
do, in the name and behalf of the people of the state of New 
Hampshire, assent to, and ratify the said constitution for the 
united states of America.” [I. Ell. Deb. 325.] 

The convention coupled with the ratification the following, which, 
with other proposed amendments, it declared to be indispensable “ to 
quiet the apprehensions ” of the people and “ to guard against an 
undue administration of the federal government; ” “ That it be ex¬ 
plicitly declared, that all powers not expressly and particularly dele¬ 
gated by the aforesaid constitution, are reserved to the several states, 
to be by them exercised.” 


124 


FEDERALIZATION. 


It is hard to discover any ground for doubt and fear. But all the 
promising appearances, all the prospective safeguards, and all the 
arguments and assurances of the constitutionists, could only “quiet 
the apprehensions ” to a sufficient extent to give the meagre majority 
of 11 in a vote of 103. Suppose Mr. Webster, who was a native of 
New Hampshire, though adoptively of Massachusetts, had, in those 
days, appeared before her — even in the prime of his greatness — and 
“expounded” the constitution, as he did forty or fifty years later, 
to mean that a great and undivided nation were, in and by that con¬ 
stitution, “ distributing their powers between their general government 
and their several state governments,” and that New Hampshire was 
only to hold and wield what the said nation “reserved” in the said 
constitution, to her, as the county, province, department, paslialic, 
satrapy, municipality, division or state of New Hampshire; suppose, 
I say, these absurd and unprincipled notions, which the Massachu¬ 
setts school profess to have believed for the last thirty or forty years, 
had been stated by Webster to New Hampshire, as the meaning of the 
constitution, would she not with unanimity have spurned it from her 
borders, and disowned the son who insulted her by proposing such 
degradation. In truth, nobody dared to advocate such ideas in those 
days. They appeared as charges to defeat the system , and they well 
nigh accomplished the purpose. 1 

Nine Parties “ established ” the Compact. — The seventh, last 
and characterizing article of the constitution provides that nine rati¬ 
fications “shall be sufficient for the establishment of this constitution 
between the states so ratifying;” so that when Delaware, Pennsyl¬ 
vania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, 
South Carolina, and New Hampshire, had ratified, it was understood 
by everybody that while, without nine, the ordinances were nugatory, 
with that number they were effective; the compact was “ estab¬ 
lished,” and the federation complete, even if no more states ratified. 

The following from the “Massachusetts Centinel” of June 25, 
1788, shows the impressions and ideas of that day, viz., that “the 
states ” (to use Hamilton’s phrase, heretofore quoted) are the “ essen¬ 
tial component parts of the union,” — the pillars upon which the fed¬ 
eral superstructure solely rests; that the constitution was “ estab¬ 
lished ” and complete when the nintTi state ratified; that it was 
established “between the states,” as political bodies of people; and 
that these were necessarily “ the people of the united states : ” 

“We felicitate our readers on the accession to the confederation of 

1 It should, perhaps, be noted here that in March, 1788, the New Hampshire conven¬ 
tion stood 54 to 50 in favor of rejecting the constitution; and that only adjournment for 
three months, with the growing confidence that the new safeguards of freedom pro¬ 
posed by Massachusetts, South Carolina, and others, would prevail, saved it. See 
extract from Va. Gazette, Appendix A., No. 2. 


NEW HAMPSHIRE FEDERALIZES HERSELF. 


125 


the state of New Hampshire, not only because it completes the num¬ 
ber of states necessary for the establishment of the constitution, but 
because it is a frontier, a neighboring, and, to us, really a sister state. 
It is now one of the noble pillars of the great national dome.” 

We find New Hampshire, then, to be the ninth absolute sovereign; 
and the federation of states, or the “ republic of republics, ” to be 
completely established by the ratifications of the nine states, 
which are named and provided for in the constitution, as distinct 
political bodies, and as parties to, and actors under it. 

The Putting of the Agency at work. — After the states had thus 
established the constitution as their frame of general government, and 
“ supreme law,” their general agency, congress, proceeded to put the 
great machine in operation. The following quotations will bring viv¬ 
idly to us the ideas of that day. 

It should be premised that the federal convention always recognized 
the political bodies called states, as the sole potential actors in the 
framing and establishing of the constitution, and considered .them¬ 
selves as the citizens, subjects, representatives, agents and servants of 
the said states, with only advisory powers. The idea of the fathers 
unquestionably was, that the new government was not to operate on 
the political bodies that were making it, but on their citizens, by 
their authority — the new arrangement being the self-government 
of the states, on matters common to them; that is to say, the govern¬ 
ment, by themselves, of their citizens, through the instrumentality of 
a general governmental agency. It should also be mentioned that 
the federal convention, in their letter reporting their plan to congress, 
unamimously said the new system was “ the federal government of 
these states,” and that it was the “ delegating ” of an “extensive 
trust.” The following is from the record of the convention. 

“In convention, Monday, Sept. 17, 1787. Present: The states of 
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton, from New 
York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina and Georgia. . . . Resolved, That it is the 
opinion of this convention that as soon as the conventions of nine 
states shall have ratified this constitution, the united states, in congress 
assembled, should fix a day on which electors should be appointed 
by the states which shall have ratified the same; and a day on which 
the electors should assemble to vote for the president; and the time 
and place for commencing proceedings under the constitution. That 
after such publication, the electors should be appointed, and the 
senators and representatives elected; that the electors should meet 
on the day fixed for the election of the president, and should transmit 
their votes, certified, signed, sealed and directed, as the constitution 


126 


FEDERALIZATION. 


required, to the secretary of the united states in congress assembled; 
that the senators and representatives should convene at the time and 
place assigned; that the senate should appoint a president of the 
senate, for the sole purpose of receiving, opening and counting the 
votes for the president; and that after he shall be chosen, the con¬ 
gress, together with the president, should, without delay, proceed to 
execute this constitution. By unanimous order of the convention. 
George Washington, President.” [I. Ell. Deb. 16.] 

The reader will please note, en passant , that here, and in the consti¬ 
tution, are positive proof that the convention unanimously asserted 
that the states , as bodies, were to ratify and establish the constitution 
[see the preamble and Article VII.] ; that the states , through electors, 
were to appoint the president [Art.-II. § 1] ; that the states were to 
elect the senators and representatives [Article I., §§ 2, 3] ; and 
that this “ congress ” of the delegations of the states , “ together with 
the president,” were “ to execute this constitution ” of the said states. 
Here is a decisive proof of the untruth of the Massachusetts school in 
saying that “ the people,” as a nation and not as states, established 
and put in effect the constitution. 

The Action of Congress. — Now let us see what action the congress 
of the states took when the ninth state had ratified. I copy, from the 
Worcester [Massachusetts] Spy of July 17, 1788, its report from the 
journal of congress, — my purpose being alike to reproduce the sacred 
record, and the impression made upon the people of that day : 

“In congress, July 2, 1788. The state of New Hampshire having 
ratified the constitution, . . . and transmitted to congress the ratifi¬ 
cation, . . . fhe president reminded congress that this was the ninth 
ratification transmitted and laid before them; whereupon ... or¬ 
dered, that the ratifications ... be referred to a committee, to 
examine the same, and report an act for putting the said constitution 
into operation, in pursuance of the resolutions of the late federal con¬ 
vention.” [See also the Journal of Congress, and I. Ell. Deb. 332.] 

The said committee on the 14th of July, 1788, reported an act for 
putting the constitution into operation, which was debated till the 
13th of September, when congress — two more states having mean¬ 
while ratified—resolved that, as “the constitution . . . has been 
ratified in the manner therein declared to be sufficient for the 
establishment of the same ; and such ratifications, duly authenti¬ 
cated, have been received by congress, and are filed in the office of 
the secretary, . . . the first Wednesday in January next be the day 
for appointing electors in the several states , which, before the said day, 
shall have ratified the said constitution; that the first Wednesday in 
February next be the day for the electors to assemble in their respec- 


NEW HAMPSHIRE FEDERALIZES HERSELF. 127 

tive states, and vote for a president; and that the first Wednesday in 
March next be the time, and the present seat of congress the place, 
for commencing proceedings under the said constitution.” [Ibid. 
333.] 

Conformably to this, their resolve, and to their -provisions in their 
constitution [Art. II., § 1; Art. I., §§ 2, 3], the states proceeded 
to “ appoint electors,” and to elect their senators and representatives 
to congress.' And, on the 4th of March, 1789, proceedings were 
commenced; and Washington having been unaminously elected presi¬ 
dent, “ the congress, together with the president,” did, as the conven¬ 
tion advised, “ proceed to execute ” “ the constitution of [t. e. belong¬ 
ing to] the united [or associated] states .” 

It is plain, then, that “ the people of the united states,” as common¬ 
wealths— they being thus respectively organized by social compact 
— did “ ordain and establish,” and “ proceed to execute,” “ this consti¬ 
tution for the united states of America.” Thus they have chosen to 
govern themselves in federal matters. And liberty is obviously at an 
end, if they, as self-organized, are not superior to the agency they, in 
self-government, create. The Massachusetts school seem to forget 
that the states were republics, and that, to remain so, they must 
retain the right of self-government — not in part, but wholly; and 
that this intact right of self-government is their sovereignty , and is the 
very thing that makes them states, and not provinces or municipalities. 
In their character as sovereign states they acted; and only a federa¬ 
tion was possible, unless there had been self-extinction, or self-degra¬ 
dation to provinces or counties, of which American history gives no 
shadow of evidence. The “nation” of the Massachusetts school, as 
well as the second social compact forming such nation, are mere 
figments. It seems to be ignored by some of the members of that 
school, that the time is past, when intelligent men, and especially 
those who have investigated the history of the constitution, can inno¬ 
cently and creditably reaffirm the dogmas of Story and Webster on 
matters of constitutional or federal history and exposition, especially 
in regard to the nature and character of our general polity. 


CHAPTER XI. 


NORTH CAROLINA FEDERALIZES HERSELF. 

THE TWELFTH TO RATIFY — REJECTION, AUG. 1, 1788, BY 188 TO 88 — 
ADOPTION, NOV. 21, 1789, BY 193 TO 75. 

HIS state, which rejected the constitution at first, but accepted 



JL it after she felt assured of satisfactory amendments, most com¬ 
pletely demonstrated the sovereign self-will of the American common¬ 
wealths, and the absurdity of the idea that any national controlling 
power existed. 

All these states (the people of which must have constituted the 
sovereign nation, if there was one) joined in declaring that the com¬ 
monwealth called North Carolina “ retained its sovereignty,” and this 
solemn treaty-recognition of the great fact was in full force, and she 
acted up to it, in the time and deed of determining her will, as to 
ratifying or rejecting the new federal plan. No one in all the land 
pretended to question her right to reject, and remain forever as inde¬ 
pendent as Russia or France ! The assertion, then, that a sovereign 
nation existed, controlling the states into association, is obviously a 
sheer fabrication. 

Her Idea of the Union. — But as North Carolina only awaited 
amendments, and did, when she felt sure of them, ratify the constitu¬ 
tion, we may profitably quote the explanations of her chief statesmen, 
to get her idea of the new system. 

James Iredell, a distinguished jurist and statesman, afterwards on 
the supreme bench of the union, said in opposition to the dogma that 
“ a government is a compact between the rulers and the people : ” 
“This is held to be the principle of some monarchial governments 
in Europe. Our government is founded on much nobler principles. 
The people are known with certainty to have originated it themselves. 
Those in power are their servants and agents; and the people, with¬ 
out their consent, may new model their government whenever they 
think proper, not merely because it is oppressively exercised, but be¬ 
cause they think another form will be more conducive to their welfare. 
It is upon the footing of this very principle that we are now met to 
consider of the constitution before us.” [IV. Ell. Deb. 9.] In refer- 


NORTH CAROLINA FEDERALIZES HERSELF. 


129 


•ence to the federal senate, he said it was necessary to vest “ this [the 
treaty-making] power in some body composed of representatives of 
states, where their voices should - be equal; for, in this case, the sove¬ 
reignty of the states is particularly concerned, and the great caution of 
giving the states an equality of suffrage in making treaties, was for 
the express purpose of taking care of that sovereignty, and attending 
to their interests, as political bodies, in foreign negotiations.” [Ibid. 
125.] He said, further, “the senate is placed there for a very valuable 
purpose — as a guard against any attempt of consolidation,” and “ to 
preserve completely the sovereignty of the states.” [Ibid. 133.] 
William R. Davie, one of the ablest statesmen produced by North 
Carolina, a member of both federal and state conventions, and after¬ 
wards in several distinguished positions, said, in the state convention, 
“ If there were any seeds in this constitution which might one day 
produce consolidation, it would, sir, with me, be an insuperable objec¬ 
tion, I am so perfectly convinced that so extensive a country as this, 
•can never be managed by one consolidated government. The federal 
committee were as well convinced as the members of this house, that 
the state governments were absolutely necessary to the existence of 
the federal government. They considered them as the great massy 
pillars on which this political fabric was to be extended and supported; 
and were fully persuaded that when they were removed, or should 
moulder down by time, the general government must tumble into 
ruin.” [Ibid. 58.] Further along in the debate, in reference to the 
proper lodgment of the treaty-making power, he said : “ As the senate 
represents the sovereignty of the states, whatever might affect the 
states in their political capacity, ought to be left to them. This is 
the certain means of preventing a consolidation.” [Ibid. 123.] In 
this connection he mentions the* most important and instructive fact, 
“ that the extreme jealousy of the little states, and between the com¬ 
mercial states and the non-importing states, produced [in the federal 
convention] the necessity of giving an equality of suffrage to the sen¬ 
ate. The same causes made it indispensable to give to the senators, 
as representatives of states, the power of making, or, rather, ratifying, 
treaties; . . . the small states would not consent to confederate with¬ 
out an equal voice in the formation of treaties. . . . Every man was 
convinced of the inflexibility of the little states on this point. It, 
therefore, became necessary to give them an absolute equality in mak¬ 
ing treaties.” [Ibid. 120.] This is like the statement that Charles 
Pinckney made in the convention of South Carolina. He said the 
smaller states, in the federal convention, declared that “ they formerly 
confederated” as equal “political associations,” and that “no induce¬ 
ment whatsoever should tempt them to unite upon other terms.” 

9' 


130 


FEDERALIZATION. 


[Ibid. 256.] Mr. Davie further said that North Carolina’s insisting 
upon amendments before ratification, was an “ attempt to dictate to 
one of the most powerful confederacies in the world ” while “ we ” are 
“ no part of that confederacy.” “ Four of the most respectable states,” 
continued he, “have adopted that constitution, and recommended 
amendments. New York [if she refuses to adopt], Rhode Island and 
North Carolina will be the only states out of the union. But if these 
three were added, they would compose a majority in favor of amend¬ 
ments. . . . Two-thirds of the legislatures of the states in the confed¬ 
eracy , may require congress to call a convention to propose amend¬ 
ments. . . . Without adoption, we are not a member of the confederacy , 
and, possessing no federal rights, can neither make any proposition, 
nor require congress to call a convention.” [Ibid. 236.] 

Archibald Maclaine, one of the ablest advocates of the federal 
system, said, in the same convention, in reference to the general and 
local governments being alike subordinate to the same people, that 
“the members of the general government, and those of the state legis¬ 
lature, are both chosen by the people — both from among the people, 
and are in the same situation.” [Ibid. 68.] In reference to the 
phrase, “we, the people,” he said: “The constitution is only a mere 
proposal. ... We might adopt it, if we thought it a proper system, 
and then it would become our act. . . . It is no more than a blank, 
till it be adopted by the people. When that is done here, is it not the 
people of the state of North Carolina that do it, joined with the people 
of the other states, who have adopted it? The expression, then, is 
right.” [Ibid. 25.] 

Samuel Johnston, who was at the same time governor of the state, 
and the president of the convention, said, on the same occasion : “We 
are not to form a constitution, but to say whether we shall adopt a 
constitution to which ten states have already acceded. If we think it 
bad, we can reject it. If proper for our adoption, we may adopt it.” 
[Ibid. 15.] Speaking of the several sacred rights of the people and 
states, which some feared the new plan endangered, he said: “ If I 
thought any thing in this constitution tended to abridge these rights, 
I would not agree to it.” As to amendments to secure the integrity 
of the states, and the subordination of the government to them, he 
said : “ It will be adopted by a very great majority of the states. For 
states who have been as jealous of their liberties as any in the world, 
have adopted it; and they were some of the most powerful states. 
We shall have the assent of all the states in getting amendments. 
[Ibid. 57.] 

Richard D. Spaight, a member of both the federal and state con¬ 
ventions, said in the latter: “ The gentleman says we exceeded our 


NORTH CAROLINA FEDERALIZES HERSELF. 


131 


powers. I deny the charge. We were sent with a full power to 
amend the existing system. This involved every power to make every 
alteration necessary to meliorate and render it perfect. . . . What the 
convention has done is a mere proposal. It was found impossible to 
improve the old system without changing its very form; for by that 
system the three great branches of government are blended together. 

. . . The proposing a new system, to be established by the assent and 
ratification of nine states, arose from the necessity of the case.” This 
new system he shows to be a federal government, with the legislative, 
executive, and judicial functions divided and independent. But was 
there, as Webster has since asserted, a change from a confederation to 
“another system]” Let Mr. Spaight answer: “If we do not adopt 
first, we are no more a part of the union than any foreign power. . . . 
If we adopt first, our representatives will have a proportionable weight 
in bringing about amendments. ... It is adapted by ten states already. 
The question, then, is not whether the constitution be good, but 
whether we will , or will not, confederate with the other states.” 
[Ibid. 206-8.] 

The Sovereign rejects the League. — But I have quoted enough. 
The friends and foes of the new plan were, in this convention, as they 
were in every other, opposed to consolidation, and in favor of preserv¬ 
ing the integrity of the state, and her sovereign will over her interests 
and destiny. That this statehood was endangered by the unamended 
constitution, was the opinion of North Carolina, for she refused to 
adopt, by a majority of 188 to 88, but simultaneously made the fol¬ 
lowing record: “In convention, August 1, 1788: Resolved, that a 
declaration of rights, . . . together with amendments, . . . ought to 
be laid before congress, and the convention of states, that shall or may 
be called, previous to the ratification of the constitution aforesaid, on 
the part of the state of North Carolina.” [Ibid. 242.] And she pro¬ 
ceeded then and there to make such declaration [Ibid. 243], and to 
join Massachusetts in demanding further safeguards for state integrity. 
Her version of the then prospective Tenth Amendment is as follows : 
“ That each state in the union shall respectively retain every power, 
jurisdiction, and right, which is not by this constitution delegated to 
the congress of the united states or to the departments of the federal 
government.” [Ibid. 244.] 

The Sovereign ratifies the League. — Having, like a sovereign, 
rejected, she subsequently, in her own time and manner, and on her 
own terms, like a sovereign, ratified the constitution — no power or 
influence exhibiting itself, in any quarter, to operate upon her will. 
On the 13th of September, 1788, as we have seen, the congress of the 
states resolved to put the new government in operation, which was 


132 


FEDERALIZATION 


duly done; whereafter, to wit, on November 21, 1789 (the general 
government having been organized; Washington elected president by 
all the states that had joined the union — except New York, she not 
participating; and the desired amendments assured), North Carolina, 
by a vote of 193 to 75, ratified the constitution as follows : Resolved, 
that this convention, in behalf of the freemen, citizens and inhab¬ 
itants of the state of North Carolina, do adopt, and ratify the 
said constitution and form of government. Done in convention 
this 21st day of November, 1789.” [I. Ell. Deb. 244.] 

Was this not acting like a “ sovereign, free and independent state,” 
as all the states solemnly agreed and guarantied she was ? 

Why did not Mr. Webster’s great “ We-the-people ” nation — the 
great sovereign commonwealth, that “ once upon a time ” — in his 
imagination — so sovereignly distributed its powers between its “ gen¬ 
eral” and its “local” governments, give North Carolina her share, 
and compel her to take it? Was it just and merciful to her people, 
to allow her to remain — as long as she chose to be contumacious — 
utterly destitute of power for their protection and welfare ? — for, be it 
known and understood, that “our states had their status in the union, 
and no other legal status! ” and “ neither more nor less power than 
that reserved to them by the constitution ! ” So said Mr. Lincoln — 
rather emphasizing, though not misstating, the views of the great 
Massachusetts expounders, Dane, Story, and Webster. 

Washington versus Webster. — Webster’s chief dogma is, as we 
have seen, that the constitution is the union or association of an un¬ 
divided nation, and that in it, this people distribute their powers be¬ 
tween their general and state governments. The following shows 
Washington’s idea : — 

On May 10, 1789, the governor and council of North Carolina ad¬ 
dressed congratulations to him on his election to the presidency, say¬ 
ing, among other things : “ Though this state be not yet a member of 
the union, under the new form of government, we look forward with 
pleasing hope to soon becoming such, and in the meantime consider 
ourselves bound in a common interest and affection with the other 
states, waiting only for such alterations as will remove the apprehen¬ 
sions of the good citizens of this state, for those liberties for which 
they have fought and suffered, in common with others.” Signed by 
Samuel Johnston, governor, and James Iredell, president of the 
council. 

Gen. Washington replied June 19, 1789. He considers “the letter 
. . . but as indicative of the good dispositions of the citizens of your 
state towards their sister states-, and of the probability of their speedily 
acceding to the new general government.” He joins'them in the 


NORTH CAROLINA FEDERALIZES HERSELF. 


133 


hope that the “ union will be as perfect, and more safe than it has 
ever been,” and concludes by imploring “ Divine guidance in the 
councils which are shortly to be taken by their delegates, on a subject 
of the most momentous consequence. I mean the 'political relation 
which is to subsist hereafter between the state of North Carolina and 
the states now in union, under the new general government.”' For 
this correspondence, see the American Museum for July, 1789. 

President Washington, Gov. Johnston, and Judge Iredell did not 
know of any “ association of the people ” of all the states “ uniting 
their power,” “joining their highest interests, ” “blending in one in¬ 
divisible mass all their hopes for the future,” and exhibiting a “ na¬ 
tional will ” “ effectually controlling,” “state sovereignty.” [Webster’s 
speeches of 1830 and 1833.] The eminent teachers of Massachusetts 
did not “ keep a school ” m those days, to teach that the union was not 
an association of states, — i. e. “ the united states ; ” and these unso¬ 
phisticated fathers thought the people had no social or political or¬ 
ganization, and no capacity to act politically, except as states. 

They took for granted, and acted upon, the principle Massachusetts 
had promulgated, — a principle applicable alike to all the equal states 
of America, viz., “That the people of this commonwealth have the 
sole and exclusive right of governing themselves as a free , sovereign 
and independent state/” 


CHAPTER XII. 


RHODE ISLAND FEDERALIZES HERSELF. 

THE THIRTEENTH TO RATIFY —REJECTION, MARCH, 1788 — ADOPTION, 
MAY 29, 1790 —VOTE, 34 TO 32. 

HIS little state rejected the constitution, by a direct vote of her 



-L people, in March, 1788. The vote was 2,708 to 232, many citi¬ 
zens declining to vote. Two years afterwards, when the amendments, 
deemed necessary to secure state sovereignty were assured, she called 
a convention, which, after duly deliberating, ratified the constitution 
by a vote of 34 to 32, — the following extract being the material part 
of her ordinance : “We, the delegates of the people of the state 
of Rhode Island and Providence Plantations, duly elected and met 
in convention, having maturely considered the constitution for the 
united states of America, ... (a copy whereof precedes these pres¬ 
ents), and having also seriously and deliberately considered the pres¬ 
ent situation of this state, ... in the name and behalf of the 
people of the state of Rhode Island and Providence Plantations, 
do, by these presents, assent to and ratify the said constitution. 

. . . Done in convention at Newport, . . . the 29th day of May, 
a. d. 1790.” 

Rhode Island, then, with the absolute right to adopt or reject, rati¬ 
fied, and made the thirteenth of the sovereigns that constituted the 
federation, and the federal government. 

Washington’s View of the Act. — In June, 1790, to the legislature 
of Rhode Island, Washington wrote, acknowledging their congratula¬ 
tions on his “ election to the chief magistracy of our confederate re¬ 
public,” and expressing his “ pleasure at the completion of our union by 
the accession of your state.” [X. R. I. Colonial Records, 410.] To Gov. 
Tenner, of Rhode Island, he wrote, June 17, 1790, congratulating him 
on the ratification of that state, and on the attainment of the union of 
“ all those states which were originally confederated.” “ Our bond of 
union,” continued he, “ is now complete, and we are once more as 
one family.” He meant family of states, and not of persons. 

Finis coronat Opus. — Rhode Island then crowned the work of 
union, as she now crowns the argument of federalization. Even 


RHODE ISLAND FEDERALIZES HERSELF. 


135 


Mr. George T. Curtis, at present the leading expounder of the Massa¬ 
chusetts school, admits that Rhode Island was then in a condition of 
“ absolute sovereignty.” [II. Hist. Const. 599.] Just as she existed, 
she took her place in the federal system, without any change being 
provided for, or hinted at. Indeed, she was named as a pre-ex¬ 
istent and unchanged political entity. That name — Rhode Island — 
could have had but one meaning, as to people, organism, or political 
right. 

Nay, more, she crowned the testimony of the states on the ques¬ 
tion of their intended absolute sovereignty in the union, in a way not 
generally noted and appreciated as it should be. Massachusetts, in 
her convention, had insisted that after the states should adopt, and 
carry into effect, the new constitution, they should amend it, declaring 
that “ All powers not expressly delegated by the constitution, are 
reserved to the several states.” [II. Ell. Deb. 177.] Samuel Adams, 
in said convention, had stated nem. dis., that this was a “ summary 
of a bill of rights,” and that it meant that “ each state retains its 
sovereignty ,” etc., “and every power,” etc., “not expressly delegated to 
the united states.” He wrote to E. Gerry and R. H. Lee, in congress 
in 1789, that the amendment was desired, so that the people might 
always “ see a line drawn, as clearly as may be, between the federal 
powers vested in congress, and the distinct’ sovereignty of the several 
states.” [III. Life of Samuel Adams.] 

Moreover, South Carolina, New Hampshire, Virginia, New York, 
and North Carolina had joined Massachusetts in demanding the 
amendment; and it had become universally understood that such 
amendment would be made, to make assurance doubly sure against 
consolidation of the states, which Ames, Parsons, Madison, Hamilton, 
Marshall, Pendleton, and others had assured the people was impos¬ 
sible under the constitution, as it stood without amendment. Again, 
North Carolina had rejected, because of the want of such provision, 
but had subsequently ratified, because she felt confident it would be 
made. 

It was then that Rhode Island crowned the evidence against the 
intent of consolidation, as follows: “ And the convention do, in the 
name and behalf of the people of the state, . . . enjoin it upon their 
senators and representatives . . . elected to represent this state in con¬ 
gress, to . . . use all reasonable means to obtain a ratification of the 
following amendments . . . : 

“ 1. The united states shall guaranty to each state its sovereignty , 
freedom and independence, and every power, jurisdiction and right, 
which is not by this constitution expressly delegated to the united 
states ...” [I. Ell. Deb. 336.] 


136 


FEDERALIZATION. 


Thus we see the status that Rhode Island, in common with her 
sisters, intended and expected to have in the union. And history 
shows that the commonwealths, and leading public men, all held the 
idea that sovereign republics were constituting a federal government, 
or, in other words, an agency, through which to exercise their powers 
for their common defence and general welfare. [See again, Part I., 
Ch. VII.] 

The Republic of Republics. — We have now patiently gone 
through the historical records of all the original states, and ascer¬ 
tained from the testimony of their leading men, who were the advo¬ 
cates of the new system, and from the acts of the states themselves, 
that the constitution was formed and vitalized by thirteen independent 
and concurrent wills, each with no superior on earth; that each and 
every convention was authorized and elected solely by the state it 
acted for, to deliberate on the proposed system, and express that 
state’s will in ratifying or rejecting it; and that, therefore, no great 
nationality or national will ever did, or could possibly, exert itself in 
the premises; but that the thirteen states did associate themselves by 
federal compact, “to establish justice, insure domestic tranquillity, pro¬ 
vide for the common defence, promote the general welfare, and secure 
the blessings of liberty; ” and did thereby “ form a more perfect 
union” of states, as well “as a more efficient federal government.” 

The association formed was necessarily a confederacy, for its con¬ 
stituents were states, which remained intact after its establishment. 
[Art I., § 2, c. 3.] It was properly called the “federal system,” 
or “confederated republic,” by Washington and his compeers; and 
it completely answered to the “republic of republics” of Montes¬ 
quieu. 


CHAPTER XIII. 


THE “EXECUTED” “DEED.” 

H AVING shown from the sacred records of the country, who the 
parties to the “ deed ” were, and their successive executions of 
the same, I now present to the eye, the instrument and its real mak¬ 
ers together, as an ocular or pictorial view will enable the simplest 
person to see and expose the leading and misleading perversions of 
those sophists, who infest every section and neighborhood, and busy 
themselves in undermining those temples of liberty, the common¬ 
wealths. 

A Fatal Admission of Mr. Webster. — Though Mr. Webster said 
the federal constitution was made by a nation, and not by states; and 
that it contained no element of a compact, he could not fail, owing to 
the nature of the case, to contradict himself, and make fatal admis¬ 
sions, as will be more plainly seen hereafter. The following example 
is from his speech in reply to Calhoun, in 1833 : “ The constitution,” 
said he, “began to speak only after its adoption. Until it was rati¬ 
fied by nine states, it was but a proposal — the mere draft of an in¬ 
strument — a deed drawn but not executed.” 

The admission that “ it was ratified by nine states,” and “ began to 
speak only after its adoption ” by these states, is a giving up of the 
whole case, for the product of such ratifications could only be a pact, 
treaty or league— and all the ink of the Massachusetts school cannot 
prevent the fatality of the admission! 

Now let us see the “Deed” as “Executed.” — That is to say, 
the constitution of general government, as “ done ” by the thirteen 
states, together with their names as constituents, and their ordain¬ 
ing words, — the only words ever, used to give it life and legal force, 
— the only words that could possibly ordain and establish it; the 
words that were, so to speak, the enacting clause of the said supreme 
law. The reader will please refer constantly and thoughtfully to the 
constitution and its-parties; and the ordaining words of these, as 
presented on the ensuing pages. Abridgment, and typographical 
devices are resorted to, for obvious purposes. 


138 


FEDERALIZATION. 


CONSTITUTION OF THE UNITED STATES OF AMERICA. 

WE THE PEOPLE of the united STATES, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, provide for the 
common defence, promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and establish this constitu¬ 
tion for the united STATES of America. 

ARTICLE I., Section 1. ALL LEGISLATIVE POWERS herein 
granted, shall be VESTED in a Congress of the united STATES, which 
shall consist of a senate and house of representatives. 

Section 2. The house of representatives shall be composed of members 
chosen every second year by the people of the several states, and the 
electors in each state shall have the qualifications requisite for electors of 
the most numerous branch of the state legislature. 

* * * Representatives and direct taxes shall be apportioned among the 
several states which may be included within this union, according to their 
respective numbers. * * * 

The number of representatives shall not exceed one for every thirty 
thousand, but each state shall have at least one representative ; and until 
such enumeration shall be made, the state of NEW HAMPSHIRE 
shall be entitled to choose three ; MASSACHUSETTS, eight; RHODE 
ISLAND and Providence Plantations, one; CONNECTICUT, five; 
NEW YORK, six ; NEW JERSEY, four; PENNSYLVANIA, eight; 
DELAWARE, one; MARYLAND, six; VIRGINIA, ten; NORTH 
CAROLINA, five; SOUTH CAROLINA, five; and GEORGIA, 
three. 

When vacancies happen in the representation from any state, the 
executive authority thereof, shall issue writs of election to fill such va¬ 
cancies. * * * 

Section 3. The senate of the united states shall be composed of two 
senators from each state, * * * and each senator shall have one vote. * * * 

Section 8. The congress shall have power — [here follows an enumera¬ 
tion of the powers of congress, and prohibitions on congress and the states].. 

ARTICLE II., Section 1. THE EXECUTIVE POWER shall be 
VESTED in a president of the united STATES of America. * * * 

Each state shall appoint, in such manner as the legislature thereof may 
direct, a number of electors equal to the whole number of senators and rep¬ 
resentatives to which the state may be entitled in congress. * * * 

ARTICLE III., Section 1. THE JUDICIAL POWER of the united 
STATES shall be VESTED in one. supreme court, and in such inferior 
courts as the congress may from time to time ordain and establish. * * * 

ARTICLE IV., Section 1. Full faith and credit shall be given in each 
state to the public acts, records, and judicial proceedings of every other 
state. 

Section 2. The citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states. * * * 

Section 3. New states may be admitted by the congress into this 
union ; but no new state shall be formed or erected within the jurisdiction 
of any other state; nor any state be formed by the junction of two or 
more states, or parts of states, without the consent of the legislatures of 
the states concerned, as well as of congress. * * * 

Section 4. The united states shall guaranty to every state in this 
union a republican form of government, and shall protect each of them 


THE “ EXECUTED ” “ DEED.” 


139 


against invasion; and on application of the legislature, or of the executive 
(when the legislature cannot be convened), against domestic violence. 

ARTICLE V. The congress, whenever two-thirds of both houses shall 
deem it necessary, shall propose amendments to this constitution; or on the 
application ot the legislatures ot two-thirds of the several states shall call a 
convention for proposing amendments, which, in either case, shall be valid 
to all intents and purposes as part of this constitution, when ratified by the 
legislatures of three-iourths of the several states, or by conventions in 
three-tourths thereof, as the one or the other mode of ratification may be 
proposed by congress; provided that * * * no state, without its consent, 
shall be deprived of its equal suffrage in the senate. 

ARTICLE VI. All debts and engagements entered into, before the 
adoption of this constitution, shall be as valid against the united states 
under this constitution, as under the confederation. 

This constitution and the laws of the united states, which shall be made 
in pursuance thereof; and all treaties made, or which shall be made, under 
the authority of the united states, shall be the supreme law of the land ; 
and the judges of every state shall be bound thereby, and anything in the 
constitution or the laws of any state to the contrary notwithstanding. 

The senators and representatives before mentioned, and the members of 
the several state legislatures, and all executive and judicial officers, both 
of the united states and of the several states, shall be bound by oath or 
affirmation to support this constitution; but no religious test shall be re¬ 
garded as a qualification to any office or public trust under the united 
states. 

ARTICLE VII. The ratification of the conventions of nine states shall 
be sufficient for the establishment of this constitution between the states so 
ratifying the same. 


I. DELAWARE. “ We, the deputies of the 
people of the Delaware state, * * by these 
presents do, in virtue of the power and author¬ 
ity to us given for that purpose, for and in 
behalf of ourselves and constituents * * approve 
of. assent to, ratify, and confirm, the said con¬ 
stitution. Done in convention * * Dec. 7, 
1787,” by unanimous vote. 

II. PENNSYLVANIA. “ We, the delegates 
Of THE PEOPLE of the COMMONWEALTH of PENN¬ 
SYLVANIA, * * do, in the name and by the au¬ 
thority of the same people, assent to and 
ratify the foregoing constitution for the united 
states of America. Done in convention, 12th 
Dec., 1787.” Vote 46 to 23. 

III. NEW JERSEY. “ We. the delegates of 
the state of New Jersey, * * do hereby, for and 
on behalf of the people of the said state of 
New Jersey, agree to, ratify, and confirm the 
same, and every part thereof. Done in conven¬ 
tion, 18th Dec., 1787,” by unanimous vote. 

IV. GEORGIA. “ We, the delegates of the 
people of the state of Georgia, * * by these 
presents do, in virtue of the powers and author¬ 
ity to us given by the people of the said state 
for that purpose, * * assent to, ratify, and 
adopt the said constitution. Done in conven¬ 
tion * * 2d Jan., a. d. 1788,” by unanimous vote. 

V. CONNECTICUT. “ In the name of the 
people of the state of Connecticut: We, the 
delegates of thf, people of said state, * * by 
these presents, do assent to, ratify, and adopt 
the constitution. * * Done in convention, Jan. 
9, 1788.” Vote 128 to 40. 

VI. MASSACHUSETTS. “ The convention 

* * do, in the name and in behalf of the people 
of the commonwealth of Massachusetts, 
assent to, and ratify the said constitution. 
Done Feb. 7, 1788.” Vote 187 to 168. 

VII. MARYLAND. “In convention** 
we, the delegates of the people of Maryland, 

* * do, in the name and on behalf of the people 


of this state, assent to and ratify, the said 
constitution.” Done April 28, 1788. Vote 63 
to 11. 

VIII. SOUTH CAROLINA. “ The conven¬ 
tion * * do, in the name and behalf of the peo¬ 
ple of this state, hereby assent to, and ratify 
the said constitution. Done in convention 23d 
of May, a. d. 1788.” Vote 149 to 73. 

IX. NEW HAMPSHIRE. “ The conven¬ 
tion * * do, in the name and behalf of the peo¬ 
ple of the state of New Hampshire assent to, 
and ratify the said constitution for the united 
states. Done June 21, 1788.” Vote 57 to 46. 

X. VIRGINIA. “ We, the delegates of the 
people of Virginia, * * now met in conven¬ 
tion, * * in the name and in behalf of the peo¬ 
ple of Virginia, do, by these presents, assent 
to, and ratify the constitution * * hereby an¬ 
nouncing to ail those whom it may concern, that 
the said constitution is binding upon the said 
people, according to an authentic copy hereto 
annexed. * * Done in convention, this 26th of 
June, 1788.” Vote 89 to 79. 

XI. NEW YORK. “ V r c, the delegates of the 
people of the state of New York, * * in the 
name and behalf of the people of the state of 
New York, do, by these presents, assent to, and 
ratify the said constitution. * * Done in con¬ 
vention, the 26th of July, 1788.” Vote 30 to 27. 

XII. NORTH CAROLINA. “ Resolved that 
this convention in behalf of the freemen, cit¬ 
izens and inhabitants of the state of North 
Carolina, do adopt and ratify the said consti¬ 
tution. Done in convention this 21st Nov., 

1789. ” Vote 193 to 75. 

XIII. RHODE ISLAND. “ We, the delegates 
of the people of the state of Rhode Island, 

* * in the name and in the behalf of the people 
of the state of Rhode Island, do, by these pres¬ 
ents, assent to, and ratify the said constitution. 

* * Done in convention, the 29th of May, A. D. 

1790. ” Vote 34 to 32. 


140 


FEDERALIZATION. 


This Depicts the Complete Federal System. — I have now 
brought the instrument, and the parties that ratified and established 
it, within a glance, carefully quoting the material parts, and leaving 
out the rest, — the object being to make a pictorial impression of the 
completed compact, or “ executed deed ” on the ordinary as well as 
the cultivated mind. Furthermore, to compel attention to some 
things that would otherwise escape notice, I have put in use some of 
the aids of typography. It is obviously not the mere instrument, 
but the instrument, the 'parties , and the government established, that 
make up the federal system. We have now, under our eye : 1. The 
“ deed ” as Mr. Webster chooses to style it; 2. The names of the par¬ 
ties to it; 3. The only “ ratifying,” “ordaining,” and “establishing” 
words ever used, to give force to the “ instrument; ” 4. The date of 
each of the ratifications, showing the severalty of them; 5. The cor¬ 
porate vote of each party, expressing her will to execute the “ deed.” 
This gives us the tout ensemble, as in a picture — the vitalized 
“ instrument ” — the “ deed ” “ executed.” Now we know and real¬ 
ize beyond a doubt, that the plan was framed in a “ convention of 
states,” and submitted to each state, to be ratified or rejected; that 
each state, of its own motion, and in its own time, called a conven¬ 
tion to act upon it; that the thirteen states successively “ ratified ” 
the instrument, j ust as any other thirteen parties would have acceded 
to, or ratified, any other instrument; that these are the only parties 
the history and records of the country give any account of; and, 
finally, that the only possible legal and political result was a compact 
of federation, and a constitution of federal government. These were 
the ideas of the fathers ; and, when we reach, as we shall presently, 
the examination of the “ deed ” itself, we shall find full corroboration ; 
for it will appear that the states were contemplated, and provided 
for, as sovereign parties and actors, in every section and every line 
of it. 

The Essentials of a Federation. —We see here all the “exe¬ 
cuted” “deed,” or instrument, as a whole ; also who the parties 
to it are, and how they vitalized it. Precisely as thirteen states of 
Europe would have done, our thirteen states successively ratified the 
great compact, thus exactly filling the technical measure of a league 
or federation, and rendering impossible anything else. That those 
constituents act by ambassadors, while ours act by conventions, is of 
no moment. The product of independent but concurring wills must 
be a compact. As Mr. Webster admits, the “instrument” became 
the “ deed ” “ executed,” when ratified by the several wills of nine 
states. “Till then,” said he, “it was inoperative paper,” having “no 
authority” and speaking “no language.” [Speech of 1833.] A mo- 


THE “EXECUTED” “DEED/ 


141 


merit’s reflection will show that anything, in the premises, but a 
compact, was a legal impossibility, while anything but a federation 
was a political one; for here were precisely the elements of each — 
no more, no less: 1. The cause, motive or consideration; 2. The 
parties capable of contracting; and 3. The assent or ratification of 
each and all. 

A second moment’s reflection shows' that instead of the constitu¬ 
tion being merely a law, as Daniel Webster is said to have argued, it 
involves : 1. The compact between the states; 2. The law of the said 
states on the subjects of their government; and 3. The constitution 
of the agency through which they, the said republics, intended to 
govern. 

A third moment’s reflection will show that the true presentation 
of our system is the above, which we ought to frame and hang on 
every wall, or print in every book of instruction; and that if this were 
done, it would so impress the people, and the rising generation (pic- 
torially, as it were), that all the hermeneutics of the hermeneutical 
Massachusetts school could not interpret or expound it away. All 
would see and know that each state virtually signed and sealed the con¬ 
stitution, through her organ, the convention, which expressed her will 
to “ ratify ” — using, in every ordinance, this very word — the word 
which the sovereigns of the world everywhere habitually use, in adopt¬ 
ing and vitalizing the compacts, treaties, leagues, alliances, etc., which 
their commissioners or ambassadors prepare. 

A fourth moment’s reflection will show how absurd is the idea of 
growth or development of written institutions. “ The logic of events ” 
cannot reason us to “ another system ” than the one our fathers 
founded. Such well-known words as “ constitution,” “ establish¬ 
ment,” etc., which have for their very soul the sense of stare , to stand, 
show that the harness the fathers devised, and the sovereigns imposed 
on their rulers, and the tests of right and justice they consecrated in 
our organic laws, were intended to remain fixed, as the defences of our 
blessings of liberty. It is only the said sovereign authority that can 
ever ordain any change. 

I shall hereafter treat of this most interesting and vital subject at 
some length. 

There is no other History of Establishment. — If states were 
not the only parties ordaining and establishing, why can we not find 
the history of some other action to this end 1 Why should the last 
article of the instrument provide “ for the establishment of this consti¬ 
tution between the states so [ i . e . by conventions] ratifying the samel” 
Why should all the leading fathers say, as they did do, at the time of 
establishing it, this system is a federation of sovereign states ? [See 
their statements in Part I., Ch. VII.] 


142 


FEDERALIZATION. 


The plain answer is that the states were associating to make them* 
selves “ the united states,” or the “ union of states,” as the constitu¬ 
tion itself repeatedly characterizes the association formed ; and it was 
politically and morally impossible that a general government, consti¬ 
tuted and carried into effect by such parties, should be other than a 
federal government, or that their union should be other than a federa¬ 
tion of equal sovereigns. 

Until the new federal constitution was completely “ established,” 
as a living and operating form of government, in place of the old ; 
that is to say, until nine states had ratified, and had acted severally 
in electing federal functionaries, and these had convened and organ¬ 
ized themselves as the new federal government; the solemn treaty- 
stipulation, guaranty, and pledge of faith, of all the states to each, 
was in full force, in the following words : “ Each state retains its 
sovereignty.” [See the first fed. const’n., Art. II.] With this 
supreme and majestic status and character, each and all acted. Must 
not sovereignty have existed in each state, through the act of estab¬ 
lishing, and hence afterwards, to enforce, and, if need be, to amend 1 
When did this sovereignty, and the voluntariness of the association 
cease 1 1 

Gross Pictorial Deception. — In all the publications of this great 
instrument, from the beginning to this day, the following words are 
placed at the close : “ Done in convention by the unanimous consent 
of the states present, this 17th of September, 1787.” Affixed to this 
are the names of the mere framers, and of the states they represent. 
A pictorial impression is thus made upon the popular mind, which the 
“ Massachusetts school ” deepen, by speciously and sophistically using 
the preamble, the supreme-law clause, and the Tenth Amendment. 
They say that the constitution teaches that “ we, the people ” of the 
nation, “ do ordain and establish ” [preamble] ; that what the nation 
ordains is “ the supreme law of the land ” [Art. VI., § 2]; and 
that all powers, not delegated by the nation, in this constitution, are, 
by the said nation, “ reserved to the states respectively, or to the 

1 While showing the states to be the absolute, the exclusive, and the only possible 
parties to the constitution, it is well to note the theory of the remarkable work called 
“The Lost Principle,” by Barbarossa, published at Richmond, in 1860. It sets forth 
that the warm controversy on representation, between the large and the small states, 
and between the North and the South, that rose in the convention of 1787, resulted in 
establishing an equilibrium between the sections by compact. Such compact — or more 
properly speaking, adjustment or understanding — if such there was, does not come under 
my aim, which is to set forth an actual written compact, constituting a government (and 
ipso facto a union of states), and delegating specific powers. The terms of that instru¬ 
ment, its powers and parties, are most palpable ; and nothing is said in it of sections or 
their agreements. However, the subject will be more extensively noticed in Part III., 
while the author’s theory will be found in the Appendix, set forth in his own words. 


THE “ EXECUTED " “ DEED.’ 


143 


people ” [Amendment X.]. This is the pith of the consolidation doc¬ 
trine. And it is well to add here, that Judge Story, as if to aid in 
misleading, asserts the aforesaid authenticating words to be a part of 
the constitution. [See his Com., § 1856.] This will be properly 
noticed hereafter. [See p. 172, infra .] 

The result of the above teaching is, a popular belief that a system 
was devised, and put in force, in 1787, by the said framers, who repre¬ 
sented and acted for the nation; while the states were present, con¬ 
senting to be bound, and to have and enjoy only such rights and powers 
as should be “ reserved to ” them and the people; and that the 
subsequent ratifications by the states, were merely the taking of the 
affirming vote of the nation by sections, or “ groups of voters.’’ [See 
Jameson’s Constitutional Convention, 59 et seq .] 

Exposure of the Fallacy. — These, and other deceptions, produce 
in the popular mind a vague and false idea of our system, and divert 
attention from the real signers of the “executed” “deed,” the real 
constituents of the constitution — “the people ” as commonwealths. 

It is forgotten that these “ moral persons ” — the bodies-politic, named 
in the constitution — gave to that instrument all its life and validity, 
each, in its own time, place and convention, discussing the instrument, 
and ratifying it. It is forgotten that they delegated in it all the 
powers it contains ; and ever afterwards administered it, through their 
own citizens and subjects, whom they elected or appointed for the pur¬ 
pose. It is forgotten, too, that it was only the draught, or unexecuted 
deed, that was “ done in convention,” while the living thing, i. e. the 
constitution of union and government, was not “ done ”— in the sense 
of being executed, i. e. ordained as law, and empowered to operate— 
till the commonwealths respectively acted on it, and gave it the only 
existence and legal force ever contemplated — each acting with her own 
absolute and exclusive will, and they taking two or three years to de¬ 
liberate and determine whether to adopt or reject — the first adopting 
in December, 1787, the ninth and complemental one in June, 1788, 
and the thirteenth and last in May, 1790. These states, as Hamil- # 
ton declared, nem. dis., were “ the parties to the compact ” [Fed. 85], 
and the “ essential component parts of the union ” [II. Ell. Deb. h04]. 

And the said states were necessarily the only “parties,” or “parts,” 
possible, for they comprised — nay, they were themselves — all the peo¬ 
ple of the country, and had under their sovereignty and jurisdiction, 
all the territory. 

The above deceptive presentation of the “ executed ” “ deed,” is 
like exhibiting a contract signed by the lawyers who framed it, in¬ 
stead of the parties to be bound. Or, it is like a conveyance, 
with the names of the conveyancers, instead of the vendor and vendee, 
affixed. 


144 


FEDERALIZATION. 


In a republic, these popular impressions are very important, as 
“ the people,” who of right govern in everything, are, unfortunately, 
gregarious, and addicted to following leaders and teachers. They sel¬ 
dom look beneath the surface, and, as appearances generally influence 
them, things virtually are, or rather become, what, to the masses, 
they seem to be. For example, in the case before us, under a consti¬ 
tution, which most clearly provides for a federation of states , governing 
themselves through agencies, we have an empire of provinces , held to¬ 
gether and ruled by a central sovereignty ! 

The “ More Perfect Union ” of 1788. — We have now a complete 
and accurate conception of the “ more perfect union ” of states formed 
in 1788, to supersede the one of 1778, which had proved unsatisfactory. 
Though the above-quoted phrase shows that the constituents were the 
same in both unions, the great perverters audaciously say that the 
change nationalized the states, by consolidating them into one state 
or nation, instead of federalizing them. Mr. Webster asserted that “ a 
change was made from a confederacy of states to a different system.” 
[Speech of 1833.] So said Judge Story [I. Com. § 357]; and such 
was the statement of the federal supreme court in “Gibbons vs. 
Ogden.” [9 Wheaton, 1.] 

All history shows the falsity of the contention; the fathers de¬ 
clare it, as Chapter VII., Part I. shows; and we shall see in the 
next chapter that the constitution itself shows it to be utterly base¬ 
less. 

The Identity of Character of the Two Unions, and the true con¬ 
ception of our present system can be at once ineffaceably stamped on 
the popular mind, and an end put to controversy, as follows : 

1. Let the commonwealths be represented as so many symbolical 
figures. On the opposite page are 13 such, with their names. Each 
represents a republic or self-governing people — “ free, sovereign and 
independent.” Added to each is a figure representing its tripartite 
government—the legislature, the executive, and the judiciary. 

2. Let a single figure be placed below to represent congress or the 
federal legislature — i. e. the first federal government. 

3. Let a line be drawn from the legislature of each state to the 
congress, to indicate the imparting of existence and authority to the 
first federal constitution, that of 1778. It was adopted by the states 
through their legislatures. 

4. Let there be added to the congress, to complete the tripartite 
form of government, two figures, one the executive, and the other the 
judiciary—thus representing the plan devised by the convention of 
1787. 

5. Then, a line drawn from each body-politic itself, instead of. its 


THE “ EXECUTED ” “DEED.' 


145 


legislature, indicates the imparting of life and authority to the second 
federal constitution — that of 1788. 

Both. Systems Federal Unions. — This symbolical demonstration 
shows precisely our present system not only, but the difference in form 
and character between it and the first. Both systems were associa¬ 
tions of commonwealths. Both unions were voluntary, and no invol- 
untariness could supervene, for each state was a republic or self-govern¬ 
ing people, with no limit of right ; and each will that acted, survived, 
and presumably remained free. And in all the long track and record 
of progress, there is no shadow of evidence that the said bodies-politic 
were consolidated, or their wills subordinated. That is to say, they 
were not provincialized again ! 

They are now the same political entities that gained independence 
and statehood. Each has now the same individual name, geography, 
people, organism, mind and will, and the original and underived right 
and power that appertained, under God, respectively to the organized 
societies of people in 1776. And out of them no power has ever gone 
except delegations to their own members, citizens, and subjects, who, 
acting exclusively with such powers, can only be “ substitutes and 
agents,” as all the fathers called them. 

The Separate Wills of States made both Systems. — It is ob¬ 
vious, then, that the system founded in 1788, was as much of a federa¬ 
tion as the first, for the people of each state gave their consent and 
ordaining power to this as to that, in their character as a common¬ 
wealth, or sovereign political body; and more unmistakably in this 
case, as here it was the commonwealth itself that acted, while there it 
was its agent, the legislature ; here the sovereignty directly delegated 
power, there the delegation was done by delegates. Masters and 
principals made up their minds and exerted their wills in the latter case, 
while servants and agents acted with their discretion in the former. 
States, in both instances, bound themselves in faith — in the former 
case affirming, or acquiescing in, the acts of their agents, but, in the 
latter, acting themselves. It is plain, then, that the union of 1788 
was a voluntary association of pre-existent sovereigns — a federation of 
distinct and absolutely independent states. Indeed, these wills could 
not, by any political or moral possibility, come together, in peace and 
without force, for self-preservation and self-government, without a 
confederacy being the result. Voluntariness was essential, and force 
could only end it! 

The Later Federation the “ More Perfect.” — If, therefore, I were 
to instance a complete federation, I w r ould name the one of 1788, in¬ 
stead of the other; for, as to this one, the forms, acts and solemnities 
were of a higher character ; the authority from the associating sove- 

10 


146 


FEDERALIZATION. 


reignties was more direct and pronounced; the architects were abler, 
more experienced, and better instructed in public law and political 
philosophy; the action was much more deliberate and careful; and 
the structure was nearer perfection, more practical, and much better 
adapted to securing the ends in view, viz., “ the common defence,” 
“the general welfare,” and “the blessings of liberty” of the self- 
joined states. [See Fed. Const, preamble.] 

But let us conclude these chapters on Federalization with one 
asking the constitution itself what polity it provides for, keeping in 
mind not only the naming of the states therein, and their separate 
ratifications to establish it, but the all-important facts : -— 

1. That the congress of the states declared, on the 13th of Septem¬ 
ber, 1788, that “the constitution . . . has been ratified in the manner 
therein declared to be sufficient for the establishment of the same; and 
such ratifications, duly authenticated, have been received by con¬ 
gress, and are filed in the office of the secretary; ” 

2. That the said instrument was then complete as the compact , the 
law , and the constitution of government of the said ratifying and estab¬ 
lishing states; and 

3. That, thereafter, to operate the machine that had been so delib¬ 
erately planned, completed, and pronounced good, “ the states began to 
act under the new compact” — to use Washington’s phrase [p. 230 
infra\ — by electing their respective quotas of the set of operatives, 
so to speak, who were to work it. 

The ship of state, which was built and made ready for sea in 
1787-88, did not ship her crew and set sail on her first voyage till 
March, 1789! 


% 




.(CONGRESS 

















































CHAPTER XIY. 


THE TESTIMONY OF THE CONSTITUTION. 

W E shall hereafter gradually see what I now assume, that in the 
republican form of government, sovereignty, according to its 
nature, controls every person and thing within its territory, and is 
itself above all control; that it is indivisible and inalienable; that it 
does in nowise consist of the rights and powers it grants and dele¬ 
gates ; that while it is the right to govern, it is not the government, 
— this being the exercise of sovereignty through agencips and instru¬ 
ments ; that sovereignty is predicable only of will; that political will 
can only exist and be exercised in and by an organized community of 
people; that hence each state must be sovereign for itself, i. e. have 
the absolute right of self-government in all things; that by their 
wills the states made “the constitution of the united [or associated] 
states; ” that in so doing they federated; that entirely intact their 
said wills must remain to govern (each itself locally, and they them¬ 
selves generally), and to amend their constitution if they wish; and, 
finally, that, in all respects, the union is an association of sovereigns. 

I shall now show that the federal instrument fully proves this 
theory, and contains nothing against it. 

“What does it say of itself?” — In his speech of 1833, Mr. 
Webster, while conceding that the constitution was no more than “ a 
deed drawn but not executed ” till it was ratified by the states, said : 
“ The question whether the constitution is a compact between states, 
is one which must be mainly argued from the instrument itself.” He 
then asks, “ What does it say of itself 2 What does it purport to be ? 
Does it style itself a league, confederacy, or compact between sove¬ 
reign states 1 ” And answers, “ Certainly not; but it declares itself a 
constitution.” This advances us not a step, but leaves the question 
still before us: What is the constitution ? Let us then adopt his 
suggestion, and ask the “ deed ” what it has to say of itself, taking 
care to keep out of his sophistical clouds. 

The Testimony of the Title and Preamble. — The title is “ The 
Constitution of the United States,” and the preamble says: “ We, 


143 


FEDERALIZATION. 


the people of the united states, ... do ordain and establish this con¬ 
stitution for the united states of America.” Whose constitution, then, 
is it 1 The title answers, “ the constitution of the * states.” Who 
is it for 1 The preamble answers, “ this constitution for the * states.” 
The states, then, are the important subjects of these sentences, while 
the word “ united ”—meaning associated—is a mere adjective. These 
phrases obviously refer to the pre-existent states, united by the pact. 
It was only as such bodies that “ the people ” could become parties 
to the constitution, for each individual citizen was a member of the. 
state, and had no right whatever to act politically, except in such 
body and as such member. 

Again, “people of” and “constitution of,” like “government of,” 
“treasury of,” “ army and navy of,” and the like phrases throughout 
the instrument, are possessive phrases, necessarily implying that the 
political entities mentioned, belonged to “ united states,” not united 
people ; which is literally the fact, and which was the understanding 
of the fathers. We are then compelled to say that the owners of 
these things, are so many states; that each must have the mind and 
will of an owner; and that the phrase “ united states ” can but mean 
pre-existent communities, who have conjoined themselves in league. 

And the repeated use, in the said pact, of the phrase “ union of 
states ” conveys the same idea [Art. I., § 2 ; Art. IV., §§ 3, 4]. Nay, 
more, the states referred to in the preamble, must be those which the 
second article of the first federal pact declared to be sovereign, and 
which must have remained so, in and through the very act and mo¬ 
ment of forming the “ more perfect union,” described and “ estab¬ 
lished ” in the second and present federal pact. 

We find, then, that the title and preamble of the constitution, 
illustrated by history, conclusive^ show a union of distinct common¬ 
wealths, coequal, and of course each for itself sovereign. I shall now 
proceed to show that all the instrument consists with these views, and 
proves itself to be a foedus of absolute sovereignties. 

The “Deed” names and recognizes the States. — Art. I., § 1, 
declares that “ representatives and direct taxes shall be apportioned 
among the several states which may be included within this union , ac¬ 
cording to their respective numbers.” The article then provides for a 
numbering and apportionment within three years, and decennial re¬ 
petitions of the same, and continues as follows : “ The number of repre¬ 
sentatives shall not exceed one for every 30,000, but each state shall 
have at least one representative ; and until such enumeration shall be 
made, the state oi New Hampshire shall be entitled to choose 3, Massa¬ 
chusetts 8, Rhode Island 1, Connecticut 5, New York 6, New Jersey 4, 
Pennsylvania 8, Delaware 1, Maryland 6, Virginia 10, North Caro- 


THE TESTIMONY OF THE CONSTITUTION. 


149 


lina 5, South Carolina 5, and Georgia 3. When vacancies happen in 
the representation from any state , the executive authority thereof shall 
issue writs of election to fill such vacancies.” 

Here are named the political bodies which are alike “ the united 
states ” and “ the people of the united states,” for “ the people ” are 
the states, and the states are “ the people.” This section shows pre¬ 
existent historical bodies, with their respective names, geographies, 
organisms and independent political wills, — bodies which fully and 
precisely filled the description of the state or nation of public law, 
and which associated themselves as “ the united states ” for their 
“common defence and general welfare,” becoming thereby “the sev¬ 
eral states” of “ this union,” as the constitution repeatedly calls them. 
The presumption is that each remained the same political body in 
the union, that acted in entering it, especially as there is no provision 
degrading, or even in the slightest degree changing, a state. 

A fact commonly overlooked, though very important, should be 
noted here. The word “state” in the constitution, referring to New 
York or Virginia, means precisely what it does when it refers to France 
or Russia, i. e. the state or nation of public law. For instance, Art. 
III., § 2, provides for jurisdiction of cases “ between a state, or the 
citizens thereof, and foreign states, citizens or subjects.” [See also 
Amendment XI.] The words “state” and “states,” used by the 
fathers without qualification, must mean what they do when used by 
publicists. The language they used must be taken in its established 
sense at that time. [See I. Story Com. § 207.] 

All Elections or Powers are of States. — All authority to elect 
federal functionaries, and all the “ powers delegated to them,” belong 
absolutely to the states, by virtue of their original existence and 
right. Article I., § 1, declares that “ all legislative powers herein 
granted, shall be vested in a congress of the united states, which shall 
consist of a senate and house of representatives.” The “ members ” 
of the “house ” are to be 11 chosen every second year, by the people of 
the several states ,” who are qualified to elect members of the lower 
branch of the state legislature. “ The senate . . . shall be com¬ 
posed of two senators from each state , chosen by the legislature thereof, 
for six years.” These provisions show that these two bodies, w T hich 
are to possess and exercise “ all legislative powers herein granted,” are 
to be entirely elected by the “ states.” 

Section 8 of the same article declares, that the aforesaid “ congress 
shall have power ” to levy taxes, borrow money, regulate commerce, 
make the coinage, establish a postal system, declare war, raise armies, 
provide a navy, etc. In section 9 are the restrictions put by the 
states upon their congress, i. e. “ the congress of the * states / ” 


150 


FEDERALIZATION. 


and in section 10 are the inhibitions imposed by the states upon 
themselves, in which they agree not to make treaties, grant letters of 
marque, coin money, pass ex post facto laws, or such as impair the 
obligation of contracts, levy duties without the consent of congress, 
keep troops or war-ships in time of peace, or engage in war, unless 
actually invaded, etc. 

We now see that the legislative provisions necessarily imply distinct 
and sovereign states, voluntarily united and voluntarily acting in the 
union; and show that the said states elect, by their voters, all the 
members of both houses of congress — this body having “ all legisla¬ 
tive powers herein granted.” Nay, more, we see that both houses of 
congress are elected by, and do represent, states alone — such states 
being identical with “ the people of the united states.” Here also is 
seen the untruth of the assertion that the house of represenatives is 
“ national ” in character, instead of federal. The representatives are 
“apportioned among the several states “each state shall .have at 
least one representative ; ” the filling of “ vacancies in the representa¬ 
tion of any state ” is provided for; the representatives are to be elected 
by and in “ the several states; ” and they are to be a part of “ the 
congress of the * states' ’ 

And, consistently with the above, Article II., § 1, declares that “the 
executive power shall be vested in a president; ” and that “ each, state 
shall . . . appoint a number of electors, equal to the whole number 
of senators and representatives to which the state may be entitled in 
the congress.” It is further provided that these electors are to meet 
in the state, and cast the vote of the state, and transmit the same sealed, to 
congress, where, in due time, it is to be opened and counted with the 
others. 

So far we see that the “ deed ” contains no idea which is not strictly 
one of federation, of state authority, and state action. And these 
legislative and executive representatives and agents of the states, are 
to provide for and appoint all other officers (including the judicial 
functionaries) of these leagued or federated states. 

The Federal Government always Vicarious. — The constitution 
expressly shows that all federal “ powers ” are, and remain, derivative 
from, and subordinate to, the states as such. 

Article I. declares that “ all legislative powers herein granted, shall 
be vested in a congress of the united states.” Article II. declares that 
“the executive power shall be vested in a president of the united 
states.” Article III. declares that “the judicial power of the united 
states shall be vested in one supreme court,” etc. Whose “judicial 
power ” is referred to 1 ? “ The judicial power of the united states,” of 
course. Whose legislative and executive authority is meant 1 That 
of the same states. 


THE TESTIMONY OF THE CONSTITUTION. 


151 


But it would be insulting the intelligent reader to argue such a 
matter further. No one can suppose that this created thing and 
agency called the government could have “ absolute supremacy ” 
over the states that established it, or indeed over any person or thing 
whatever. 

All Citizens and Subjects are those of States. — The next two 
articles will prove that all federal officers and all citizens are citizens 
of the states, and of course respectively their subjects; as well as show 
still further that the states were intended to be the sole parties to and 
actors in the federal system. Article III. with Amendment XI., pro¬ 
vide that “the judicial power shall extend ... to controversies 
between two or more states; between a state and citizens of an¬ 
other state; between citizens of different states; between citizens of 
the same state , claiming lands under grants of different states; and be¬ 
tween a state , or the citizens thereof, and foreign states, citizens and 
subjects,” but that (as the amendment provides) this “power shall 
not be construed to extend to any suit against one of the united 
states by citizens of another state, or by citizens or subjects of any 
foreign state. ” < 

Here and in Article IV., § 2, we find the whole “ people of the united 
states” provided for, in reference to judicial matters, and privileges 
of citizenship, under the description of citizens of states. 

But let us go on. Article IV. says : “ Full faith and credit shall 
be given in each state to the public acts, records and judicial proceed¬ 
ings of every other state. . . . The citizens of each state shall be 
entitled to all privileges and immunities of citizens in the several 
states.” 1 

The Union was made to preserve the States. — The following 
clauses of this same Article IV. put it beyond doubt that the union 
was to be composed exclusively of states; and that the great object 
of forming it was the preservation of them in their full pre-existent 
integrity and sovereignty. “New states may be admitted by congress 
into this union; but no new state shall be formed or erected within 


1 This is the only citizenship in the united states, that the fathers ever contemplated. 
A state, as will be seen, is the members thereof, bound in the social compact. Look at 
the present constitutions of Massachusetts and New York. The latter calls her people 
“members” and ‘’citizens” of the state. Massachusetts sets forth the actual social 
compact in her preamble, and calls her citizen “a subject of this state,” as he is in fact 
and in right. In a republican state the social compact is the only possible tie of alle¬ 
giance. We shall see this hereafter, as well as that the only allegiance in our country is 
due to the state. 

When the phrase*“citizen of the united states” is used, it means a citizen and subject 
of a state, entitled to the benefit of this stipulation of his sovereign, when he goes to any 
one of the federalized states, i. e. he can go to any state, and have the same “privileges and 
immunities” as the citizens of that state enjoy. 


152 


FEDERALIZATION. 


the jurisdiction of any other state'; nor any state be formed by the 
junction of two or more states or parts of states , without the consent of 
the legislatures of the states concerned, as well as of the congress. . . . 
The united states shall guaranty to every state in this union, a repub¬ 
lican form of government, and shall protect each of them against inva¬ 
sion,” etc. 1 

The Wills of States must live to amend. — Article V. provides 
for amendments by the “ ratification ” of three-fourths of “ the states ; ” 
and that “ no state without its consent shall be deprived of its equal 
suffrage in the senate.” Here alone are two irrefutable proofs of the 
correctness hereof, and of state sovereignty in the union. 1. The 
phrase, “ its consent,” shows beyond question the contemplated sur¬ 
vival of the sovereign wills which acted to “ ordain and establish this 
constitution.” 2. States cannot ratify amendments, without having 
kept, for future exercise in ordaining, the wills that originally 
“ratified” and “ordained.” And if the reader will look thoughtfully 
at article V., he will see that the congress of the states — that is to 
say, the states collectively — is to propose amendments, and each state 
is to “ratify,” i. e. “ordain ”—thus laying the additional federal law 
on her members, citizens or subjects. Let it be kept in mind that 
government, including the making and administering of constitutions, 
is mental and functional action ; and that mind must dwell in some 
body, and act through organs, while, as all functionaries are oath-bound, 
they must belong to one of two classes, the perjured and the unper¬ 
jured ! 

The Same States made both Federal Compacts.— Article YI. 
provides that the debts, etc., shall be as valid against the united 
states under this constitution, as under the confederation; and that 
the constitution, and the laws made in pursuance of it, and the treaties, 
“ shall be the supreme law of the land ; and the judges in every state 


1 The phrase “a republican form of government” obviously means a republic, in 
contradistinction to a monarchy or aristocracy; a government of the people by them¬ 
selves, no matter what form they choose to be organized and to act in. “Each state re¬ 
tains its sovereignty ” was the solemn agreement and pledge of faith of all the states, in the 
constitution of 1778. “ Every state in this union ” exercised this sovereignty, or right of 

self-government, till the full and entire formation of the present union, and hence till after 
the present constitution was “ ordained and established.” Hence it was 13 sovereignties 
that “ordained and established,” and hence the above clause can but mean that each 
state is guarantied by all in the enjoyment of the said sovereignty, or the right of self- 
government. It is a pledge of faith of all to each ; that she shall be “/ree ” in will, 
“ sovereign" in will, and “ independent ” in will. And the very essentials of a repub¬ 
lic are “freedom, sovereignty and independence,” in mental powers or faculties— i. e. 
in perception, reason, judgment and will, to be exercised in government ; and these dis¬ 
tinguish the state from the province or county. The will of a republic, or commonwealth, 
or state, must remain , in all things above her institutions of government , whether general 
or local — federal or state. It is this alone which makes her a free state or republic 1 



THE TESTIMONY OF THE CONSTITUTION. 


153 


shall be bound thereby . . . ; ” and all officers, both of the federal 
and state governments, are to swear “ to support this constitution.” 

The above words, “ constitution ” and “ confederation ,” evidently 
refer to the instrument used — “ the united states ” being the identical 
and absolutely unchanged parties “ under ” both ; but with great 
unfairness, Story and Webster refer to this article in proof of a change 
“ from a confederation to another system ” of government, which is not 
a confederation, and which they say is a constitution ! and furthermore, 
Webster absurdly says “ the constitution is a government proper,” as 
if the instrument , and the government under it, were the same political 
entity! He might as well have said, a constitution is what is con¬ 
stituted ! 

The Instrument says the States are the Parties. While all 

the expounders of the Massachusetts school positively assert that the 
people, as a nation, made the constitution, and are the constitutents 
of the union, the “ deed ” itself as positively proves the contrary, by 
showing the states to be the sole parties to “ the union of states ” 
called “ the united states.” Let us see. Keeping in mind the actual 
naming of the states in the first article, and the constant recognition 
of them through all the provisions thus far quoted, let us bring to 
view Article VII. This article, the full force of which does not seem 
to be appreciated, prevents the possibility of honest controversy; for 
it is absolute and decisive proof of the states being the sole parties to 
the instrument, and hence superior to it in every possible respect, as 
well as sovereign over the government provided for. It reads as 
follows : “ The ratification of the conventions of nine states shall be 
sufficient for the establishment of this constitution, between the states 
so ratifying the same.” 

Unquestionably, then, 1st, that which is to establish, or suffice 
for “ establishment ,” is “ ratification ; ” 2d, 11 states” are to “ratify 
3d, therefore, “ the states ” are to “ establish ” the constitution and 
government. 

No question can arise that conventions were to declare the sovereign 
wills of states, for the language is, “ between the states so \i. e. by 
conventions] ratifying the same.” 

And we must keep in mind, too, the character in which the states 
acted, until the establishment of the constitution was completed — 
that of sovereign states. See the second article of the “ federal con¬ 
stitution,” which was, in 1788, or perhaps on the 4th of March, 1789, 
superseded by the present one. 

In order that we may now and here fully appreciate the gross error 
of the Massachusetts school, let us exhibit the preamble and Article 
VII. in juxtaposition — keeping in mind the naming of the states, and 


154 


FEDERALIZATION. 


their recognition throughout, as well as the fact that “ united ” is 
merely an adjective : “We, the people of the united states ... do 
ordain and establish this constitution. . . . The ratification of the 
conventions of nine [of the said] states shall be sufficient for the estab¬ 
lishment of this constitution between the states so [i. e. by conven¬ 
tions] ratifying the same.” It is certain, then, that several states, 
and not a nation, “ established ” the system, and remained the sove¬ 
reigns of it. 

The “ Executed ” “ Deed.” — To give a correct idea of the consti¬ 
tution as a completed instrument, binding the parties — whether in 
law or in faith, it matters not — it should, as above shown, be published 
with the names of the states, and the expressions they used in ratifying 
and ordaining—just as should any other deed, compact, or instrument 
whatever. Who ever before heard of a completed contract, or “ exe¬ 
cuted ” “ deed ” being published — with the intent of showing it as such 
— with the names of the lawyers who drew it up, but not the names 
of the parties I How would such a document look in court as the 
basis of a suit against a party 1 ? Nay, more, how does it look when 
cited to tell its own history and character 1 ? When Mr. Webster 
asked, “ What does it say of itself 1 ” the last thing in the world to 
serve his purpose was its answer ! 

It is now evident that to get a complete idea of “ the constitution 
of the united states,” the instrument, the names of the ordainers, and 
the ordaining words, should be presented together, in a pictorial rep¬ 
resentation, as it were, just as is done above [ante y p. 139]. The acts 
of ratification undoubtedly vitalize the instrument. Suppose courts did 
not take official cognizance of the constitution, and it were permitted 
to be denied that it was law in a given state, the act of ordaining or 
adopting would be indispensable to show its “ establishment ” in her 
territory, and over her people. There is, as to any given state, but 
one ratifying , ordaining, or establishing act in existence. Nobody 
ever heard of any other than the act of ratification. 

The Compact was “done” only by States. — Instead of the con¬ 
stitution being “done” by the convention of 1787, this body was 
composed of mere agents of the states, and was under special instruc¬ 
tions from them to devise a plan, and report it to congress, to be sent 
by that body to the respective states for their absolute decision, — each 
for herself, pro or con. Each, through her legislature, called her con¬ 
vention which her people elected. Each held it in her own time, and 
at her own place ; and each had the universally conceded right to re¬ 
ject, and two of them did so. All finally ratified ; three in 1787, eight 
in the different months of 1788, one in 1789, and the last in 1790; 
each convention by vote declaring the will of a corporate body, a sove- 


THE TESTIMONY OF THE CONSTITUTION. 


155 


reign commonwealth. The convention of 1787 had simply “ done ” 
what would have been waste paper, but for the life and validity, which 
was “ done ” to it by these thirteen absolutely sovereign wills. By 
these wills, and by them only, “the constitution of the united states” 
was “ done,” the federation formed, and the government “ estab¬ 
lished.” 

The statement of Daniel Webster, in his speech of 1833, places 
this matter beyond controversy : “ Until the constitution was ratified 
by nine states, it was but a proposal — the mere draft of an instru¬ 
ment. It was like a deed drawn but not executed ; ... it was in¬ 
operative paper; ... it had no authority; it spoke no language.” 

The constitution contains no sign of any other theory than the one 
herein set forth; and no leading father can be cited in opposition to 
it. The “ powers ” of the instrument must be delegations of states; 
the restrictions on states must be their agreements; the government 
must be their creation ; the administrators of it must be their electees 
and agents; all “the people” must be their members, citizens, and 
allegiant subjects; all the voting authority and suffragists of the coun¬ 
try are exclusively theirs; the only creating , ordaining, delegating , 
granting and owning authority, the instrument shows to be theirs; and, 
in short, the states are recognized and referred to everywhere, as the 
be-all and the end-all of the system. 

The union of states is simply a voluntary association of sister 
republics. A change to involuntariness, or in other words, to an in¬ 
dissoluble union, cannot be made without destruction of the right of 
self-government, — the very thing that characterizes a republic, and 
the degrading of the state to a province. And the imperialism or 
“absolute supremacy” of “the government,” over allegiant states, 
exercised in keeping the states together against their respective wills, 
involves perjured usurpation and flagrant treason, on the part of fed¬ 
eral officials. 

In reflecting on this subject, it is well to keep constantly in mind 
these facts : the federal government was created and placed over citi¬ 
zens, by the acts of their respective states; and each state, until she 
had fully deliberated, and, by adopting the constitution, had become 
a party, was acting in the character agreed on by all, in the solemn 
league and covenant then subsisting, to wit: “ Each state retains her 
sovereignty No power to constrain her will did or could then exist. 
Only a voluntary federation of sovereignties was possible ; and it was 
formed. 

It is also well to remember that, at the making of the union, states 
occupied all the country, and included all the people, and governed 
both, exclusively by their will, and hence left no persons or territory 


156 


FEDERALIZATION. 


to make a nation of. “ The people ” had no organized or political 
existence or capacity to act in political government, except as 
states. 

Only a Federation was possible. — In the great work before 
them, the fathers had little or no opportunity for high creative or 
organizing statesmanship. The entities or materials to build with, 
were all matters of fact, pre-existent and perfect; the main conditions 
were all forewritten; and natural logic carried the architects, with the 
inexorableness of Divine decrees, to a federation. Neighboring, kin¬ 
dred, republican and friendly societies, each free and sovereign, and 
all with cognate principles and mutual interests, were to associate, to 
preserve themselves, and the precious rights of their members. They 
could but plan through agents, and themselves vitalize the plan. So 
that if Hamilton, Morris, Wilson, Washington, and others, really did 
wish — as some assert, though without proof — to consolidate or 
nationalize the states, 

“ They builded better than they knew! ” 

And they afterwards confessed that such purpose, if ever held, was 
not accomplished; and declared that a federation of sovereign com¬ 
monwealths was actually made ! [Part I., Chap. VII.3 


PART in. 


FALLACIOUS EXPOSITION. 


“ . . . full of subtile sophismes which doe play 
With double sences, and with false debate.” 

Faerie Queens. 














* 

V 









PART III. 


FALLACIOUS EXPOSITION. 


CHAPTER I. 

CHARGES AND EXPOUNDINGS IDENTICAL. 

T HE false charges, made by the anti-federalists to defeat the consti¬ 
tution, though promptly met and decisively refuted, were subse¬ 
quently adopted by the professed friends and so-called expounders 
of our system, as the true expositions thereof, — a proceeding much 
like vindicating a man’s character, by ascribing to him the evil traits 
which have been charged by his enemies for the purpose of destroy¬ 
ing it. 

These were ascriptions of intent and meaning; and though Wash¬ 
ington, Hamilton, Madison, and all the rest of the constitutionists 
declared and conclusively showed — as is indicated in Part I., Chapter 
VII. —that the intent and meaning were directly the reverse of what 
was charged, yet most sedulously have the said expounders, during 
the last half of our century of federal liberty, asserted and taught 
the false and reprobated theory as the true one ! 

In so doing, they necessarily entered, and travelled in, the path of 
sophistry, and committed the flagrant wrongs now exposed. 

Comparison of Charges and Expoundings. — I proceed to place 
the original and untrue charges, and the pretended expositions, side by 
side, under five heads, so that we can take in at a glance the gross 
interpretative impositions to which the American people have been so 
long subjected. The enemies and the expounders both contend that 
by the present constitution : 

1. The states were made into one state ; 

2. A federacy was changed to a nation; 

3. The general government is a sovereignty ; 

4. “ The government ” is the final judge of its authority; 

5. A state and a county are alike in status, and equal in rights. 



160 


FALLACIOUS EXPOSITION. 


I. — THE STATES MADE INTO ONE STATE. 


Said Patrick Henry in the Vir¬ 
ginia ratifying convention : “ It must 
be one great consolidated national 
government of the people of all the 
states.” [III. Ell. Deb. 227.] 

For similar views of Elbridge 
Gerry, see I. Ibid. 493. 

II. — THE CHANGE FROM A 

Said Patrick Henry : “ This is 
an alarming transition from a confed¬ 
eracy to a consolidated government.” 
[III. Ibid. 44.] 

Lowndes, Martin, and Lansing 
maintained the same position. [See 
Ell. Deb. passim.'] 


Said Webster, in his speeches of 
1830 and 1833: “The federal con¬ 
stitution is established by the people 
of the united states in the aggregate. 

. . . The union is the association of 
the people.” “ It is the people who 
speak, and not the states.” 

FEDERACY TO A NATION. 

Said Webster In his speech of 
1833 : “ All contemporaneous history 
shows that a change was made from 
a confederacy of states to another 
system.” And the Supreme Court 
of the United States have, through 
Judge Story, declared the same thing. 
[Gibbon vs. Ogden, 9 Wheaton, 1.] 


III. — THE GENERAL GOVERNMENT A SOVEREIGNTY. 


Lansing, Williams and Smith, 
in the New York convention, and 
Henry and Mason in the Virginia 
one, contended that the constitution 
is, by the will of the people, expressed 
in the “ supreme law ” clause, placed 
above the states ; and that the gen¬ 
eral government can therefore con¬ 
trol every power that would impede 
its operations. [II. Ibid. 374, 377.] 
Williams said : “ Congress is the 
highest power in the government.” 
“Whatever they judge necessary for 
the proper administration of the 
powers lodged in them, they may 
execute without any check or impedi¬ 
ment.” [Ibid. 338.] 


Said Webster in his speech of 
1833 : “ This constitution,” etc., “ is 
the supreme law of the land.” “ So 
far as the people have expressed their 
will in the constitution, so far state 
sovereignty is effectually controlled.” 

G. T. Curtis wrote in 1861 to Ever¬ 
ett that “ an irrevocable conveyance” 
of ‘ ‘ political sovereignty” was made 
by the states to the government. 

The federal Supreme Court have 
recently said that the states submitted 
themselves to the dominion of a 
government, etc. [Cruikshank Case, 
1876.] 


IV. — THE GOVERNMENT THE FINAL JUDGE OF ITS AUTHORITY. 


Said Luther Martin : “ By its 
[i. e. the government’s] determi¬ 
nations every state must be bound.” 
[I. Ibid. 380.] 

Again : “ All courts, whether fed¬ 
eral or not, would be bound by oath 


Said Webster, in his speech of 
1833: “ The government of the 

united states does possess, in its ap¬ 
propriate departments, the authority 
of final decision on questions of dis¬ 
puted power.” 


CHARGES AND EXPOUNDINGS IDENTICAL. 


161 


to give judgment according to the 
laws of the union.” 

Said Smith, in the New York con¬ 
vention : “ The general government 
has moreover this advantage : all dis¬ 
putes relative to jurisdiction must be 
decided in a federal court.” [II. Ell. 
Deb. 332, 378. See also Lansing, 
p. 354.] 

It was claimed generally by the 
enemies, that the general government 
was to arbit finally on all questions 
concerning jurisdiction. 


He also said in the same speech : 
“It rightfully belongs to congress, 
and to the courts of the united states, 
to settle the construction of this su¬ 
preme law in doubtful cases.” 

George T. Curtis, in his argu¬ 
ment in the Dred Scott case, Dec. 
18, 1856, said: “Congress is . . . 
the absolute, supreme, and final 
judge of what the constitution has 
committed to its political discre¬ 
tion.” 


V. — A STATE AND A COUNTY EQUAL IN RIGHTS. 


Said Tredwell in the New York 
convention : “ The sole difference 
between a state government under 
this constitution, and a corporation 
under a state government, is, that 
a state being more extensive than a 
town, its powers are likewise pro¬ 
portionally extended, but neither of 
them enjoys the least share of sove¬ 
reignty.” [Ibid. 403.] 

Many extracts like this could be 
given from the contemporaneous foes 
of the constitution. 


Said Lincoln, after he was elected 
to the Presidency: “ In what, on 
principle, is a state better than a 
county 1 ” His contention was that 
states had “ no status or' rights,” but 
those given to them in the national 
constitution ; and that in rights, states 
and counties were alike. 

Webster, in his speech of 1833, 
said substantially the same thing, 
viz. : that “ state sovereignty is ef¬ 
fectually controlled ” by the govern¬ 
ment. 

The dictum of the federal Supreme 
Court heretofore given, is idem so- 
nans with the above. 


“ Look here, upon this picture, and on this ; 

The counterfeit presentment of two brothers.” 

Let us stop and reflect! Did the American people really adopt the 
consolidation that they feared, and hated, and scorned so much, that the 
mere suspicion of it well nigh caused the repudiation of the system 1 
To appreciate the great and general dread of consolidation, or destruc¬ 
tion of the commonwealths, let the reader recur to the views of Fisher 
Ames, and those of Chancellor Pendleton, pages 81 and 110 supra. 

In justice, however, to pure patriots, I should here say, en passant, 
that Henry, Mason, Martin, Lowndes, Yates, Lansing, Gerry and 
others, were opponents of the constitution, because they were friends 
of liberty, which they thought or feared the system endangered. 
Their idea was, that it might reduce the commonwealths to their then 
recent provincial condition, and make the revolution nugatory. 

11 



162 


FALLACIOUS EXPOSITION. 


The Federal simulacrum. Expositions, thus originating, necessi¬ 
tated the misstated facts, the abuse of logic, and the perversion of 
language, of which sophistry is composed; and finally became formu¬ 
lated as commentaries, judicial decisions, obiter-dicta , party-platforms 
and so-called constitutional arguments, through which media alone the. 
federal instrument was seen, — the result being virtually a spurious 
constitution. 

And under the teaching and lead of politicians — who as a class 
have become the greatest enemies of liberty — the people actually 
turned away from the real system, and the golden words of the fa¬ 
thers, as well as the truths of political philosophy ; and the very oppo¬ 
sites of them all became “ public convictions ” [for this phrase see 
quotation from Mr. Curtis in the opening of the next chapter]. 
Perversion, for gaining and effectuating what the constitution denies 
and prohibits, has been so long habitually practised, that a concor¬ 
dant usage has gradually supervened, and the precious compact is 
hidden by a simulacrum ! 

The Sheik al Gebel. — Hassan Sabah, the founder of the order of 
Assassins — commonly called the “Old Man of the Mountain,” who 
flourished near the shore of the Caspian in the 11th century, “com¬ 
posed for his dais or initiated, a catechism consisting of seven heads, 
among which were implicit obedience to their chief; secrecy; and the 
principle of seeking the allegorical, and not the plain sense of the 
Koran, by which means the text of that book could be distorted to 
signify anything which the interpreter wished.” [I. Univ. Hist. 
240. Enc.yc. Brit, verbo Assassin.] 

In the formation of the union, and for many years thereafter, Mas¬ 
sachusetts held the first place as the exemplar of institutional liberty, 
and the representative of statehood. But to the grand old mother 
came degenerate sons — men who, like the Sheik al Gebel, founded 
an exeget.ical system to distort the plain sense, the evident purpose of 
the constitution, so as to make it provide for a nation of provinces , 
instead of a confederacy of states , — the central power of the former 
promising advantages to sections and classes, as well as personal gains, 
which a compact among sovereign, equal, watchful, and jealous states, 
covering the actual points contemplated, and leaving out all others, 
with strict construction and faithful execution of powers, would never 
permit. 

Judge Story’s Relation to these Perversions. — As head¬ 
master of the Massachusetts school, Judge Story succeeded Nathan 
Dane, who, after having striven with others to prevent the adoption 
of the constitution, revived the charges they had made against it, and 
foisted them upon it as expositions. 


CHARGES AND EXPOUNDINGS IDENTICAL. 


163 


Whether Judge Story was his disciple and follower in this matter, 
I am not prepared to say; but he quotes Dane with approval, and 
neglects, or fails to quote, all the advocates of the constitution, both 
of his own state, and elsewhere, save such as suit his purpose. Why 
does he confine his citations of contemporaneous evidence to Dane, 
Henry,. and other known enemies 'l Why does he not cite the in¬ 
structive debate of the ratifying convention of Massachusetts ? Why 
does he not quote from the other debates, — say those of New York, 
Pennsylvania and Virginia “? Why does he nearly ignore the important 
parts of the Federalist ? Why does he not quote, fully and fairly upon 
the points he makes, from Washington, Franklin, Hamilton, Madison, 
Livingston, Patterson, Wilson, McKean, Coxe, Dickinson, Pendleton, 
Randolph, Nicholas, Corbyn, Marshall, Davie, Iredell, and others 'l Is 
it because they are unanimous against his cherished dogma — that an 
undivided nation , from the plenitude of its political sovereignty, formed 
and empowered both general and state governments ? When he resorted 
to contemporaneous debates, he found his theory of the constitution, 
only in the shape of charges made by enemies, for the purpose of de¬ 
feating it. These he avails himself of as follows : “ It is also histori¬ 
cally known that one of the objections taken by the opponents of the 
constitution was, ‘ that it is not a confederation of states, but a govern¬ 
ment of individuals.’ ” [I. Story Com. § 356.] By recurring to the 

text the reader will see (what the word “ also ” indicates) that Judge 
Story introduces this as cumulative evidence of the truth of his 
theory. He plainly admits the theory of the enemies to be his. 
They charged it to defeat the system. He uses their charges as 
explanations of it, though they are contradicted and refuted by all 
the fathers. He quotes Patrick Henry, the most determined enemy 
of the system, as follows : “ That this is a consolidated government 
is demonstrably clear. The language is, ‘ we, the people,’ instead of 
‘ we, the states.’ States are the characteristics and soul of a confed¬ 
eration. If the states be not the agents of this compact, it must be 
one great consolidated national government of the people of all the 
states.” [Ibid. § 358, note and authorities cited.] 

Now, here is a professed friend and expounder of the constitution, 
predicating of it precisely the assertion made — as a charge to defeat 
it — by its most bitter enemy; and quoting the statement of that 
enemy to prove the correctness of his exposition. Nay, more, he ig¬ 
nores or suppresses the volumes of opposing statements made by the 
advocates of the constitution, and fails to state that it is also “ histori¬ 
cally known ” that the triumphant refutation of these charges of Henry, 
Martin, Lowndes, Dane, and others, alone saved the constitution from 
overwhelming defeat; and furthermore, that these charges operated 


164 


FALLACIOUS EXPOSITION. 


as warnings to the people, and induced them, in their state conven¬ 
tions, and everywhere among themselves, and through the press, em¬ 
phatically to repudiate (as their deputies had done in the convention 
of 1787), every idea of a national government, or a governmental 
sovereignty; and, moreover, to make the 9th, 10th, and 11th amend¬ 
ments, to prevent the possibility of these curses ever supervening. 

Probable Reasons for Judge Story’s Error. — It is known, how¬ 
ever, that Judge Story did not originate these dogmas; and it is con¬ 
jectured that without that close research and profound thought that 
so momentous a subject required, he adopted the views and copious 
citations of Dane, than whom there was no abler lawyer or more com¬ 
petent investigator. Moreover, from 1811 to his death in 1845, 
Judge S. was a member of the federal Supreme Court, which, being 
interested, generally favored the idea of a strong, self-perpetuating 
government, and leaned to national views. So that, besides being 
prejudiced, when, in the era of perversion — say from 1830 to 
1835—the said dogmas came into prominence as a system, he was 
engaged in judicial, professorial, and book-making labors, and hence 
was compelled to remit the research and argument to sustain the new 
exegesis, to Webster and Jackson, who did not investigate, because, 
like themselves, the champions of the commonwealths merely assumed 
the premises of their arguments. Both parties needed to be driven 
to industrious research for the facts of the case ! 

Were the Motives worthy of the Occasion? — It seems to me 
that all the contestants cared more — as is the case with partisans 
generally—for keeping or getting power, for gaining material advan¬ 
tage, or for gladiatorial triumph, than for basing our polity on the deep 
and earth-wide rock of truth, and measuring it with the mete-wand of 
Eternal justice. They cared more for victory than for right! 


CHAPTER II. 


WHO MAKES “ SUPREME LAW.” 

I WILL now proceed to take up, seriatim, and test the truth and 
the constitutional principle of the leading dogmas, or so-called in¬ 
terpretations of the “Massachusetts school.” 

A conspicuous neutral journal, a few years ago, mentioned the fact 

that the-Railway Company of New York had so contrived 

a book, that their visitors, in registering, unwittingly signed a memo¬ 
rial to the Legislature for a charter, subsidy, or some other grant to 
the company; and remarked that “this neat little trick is worthy of 
the best minds ever produced by Massachusetts.” 

As to politicians they are alike everywhere, and that state is by no 
means peculiarly deserving of this fling. All of them trick for party or 
personal gain; and so degraded is partisanship nowadays, that even the 
most sacred principles of the constitution are subjects of compromises, 
adjustments, platforms, party legislation, etc. In principle the neat 
little trick is like some of the so-called interpretations I have to 
expose, just as the Thracian robber’s acts were like those of Alexander 
the Great. But the difference in degree, if not in respectability, is 
vast. The former will ever remain anecdotical, and too little to be 
worth authenticating, while the • expoundings of Dane, Story, and 
Webster, and the results thereof, will live as long as history itself. 
Mighty armies rallied upon their phrases, and marched to the music 
of their sounding words. At their bidding hundreds of thousands 
were slain, wide regions desolated, and states reduced from freedom 
to the most abject bondage of provinces. 

I will attempt no allotment of credit among the above worthies. 
George Ticknor Curtis, the biographer of Daniel Webster, claims all 
the glory for his hero, as follows : . . . “ It is to him that we are to 
trace that great body of public convictions, which, ten years after he 
was laid in the tomb, enabled the government of the United States 
to draw forth the energies of a people who would never have gone 
through the late civil war without those convictions. . . . He knew 
well, that if the issue did come in this terrible form, he had prepared 



166 


FALLACIOUS EXPOSITION. 


the intellect of his country, with that which could alone justify and 
support the efforts that must be made. He knew always that his own 
fame was completely identified with the doctrine that regards the con¬ 
stitution, not as a compact , but as a law.” The italics are in the 
text. 

“ What is our System ? ” is Matter of Fact. — Common sense 
would say that the question whether our general organism is “ united 
states,” or an undivided nation; a “union of states,” or a union of 
persons, is one of fact, to be settled by the constitution itself; and 
in cases of doubt, by historical evidences of intention. But the 
expounders, to accomplish their ends, set up before the sacred instru¬ 
ment a screen of what they call “interpretation,” or “commentary,” 
which is composed of untruths, misstated facts, garbled quotations, 
and sophistical arguments; and thus produce the said “public 
convictions.” 

The constitution was established, and its character was fixed, when 
nine states had ratified it. That character was a matter of fact and 
technical description. But no question of interpretation could properly 
arise, till after the election and organization of the government; and, 
even then, not till the legislature, executive, or judiciary should find, 
involved in a case before them, some doubtful provision, phrase, or 
word, to be interpreted according to accepted rules, for the purpose of 
ascertaining the intention of the ordaining power in using it. [See 
Part I., Ch VIII.] 

Proceeding now to show how the “ Public Convictions ” were 
produced, and to expose the untruth and sophistry of the leading so- 
called interpretations of the Massachusetts school, I notice en passant 
the above expression of Mr. Curtis, that Daniel Webster’s “ fame is 
identified with the doctrine that regards the constitution not as a 
compact , but as a law” 

The instrument is both a compact and a law. It purports to be, 
and is, a compact because it is to be adopted by separate ratifiers, 
they all being pre-existent and complete states (each of them acting 
with its own will through a convention) ; and their ratifications are 
declared to be “ sufficient for the establishment of this constitution ; ” and, 
secondly, it calls itself a law — “the supreme law of the land.” 

In the third place, the instrument is a constitution of a govern¬ 
mental agency. I doubt if any one understands the instrument, who 
does not view it in this threefold aspect. 

Aside from the constituting idea, it is, like a treaty between or 
among powers of Europe, both a compact and a law, it being the latter 
to the subjects of each power, even without a declaration to that effect. 
The constitution itself calls a treaty (which is a compact) “ the law 
of the land.” [Art. VI.] 


WHO MAKES “SUPREME LAW.” 


167 


So that Mr. Curtis’ distinction is worthless, both as to the fame of 
Mr. Webster, and as “that which could alone justify and support” 
our unrepublican war. But let us pass to 

INTERPRETATION No. 1. — The Nation Ordained. 

To prove that the federal constitution is made by, rests upon, and 
derives its authority from, the aggregate people of the united states 
as a nation, Nathan Dane writes that the instrument “ is, as the 
people have named it truly, a constitution; and they properly said, 

4 We, the people of the united states, do ordain and establish this con¬ 
stitution,’ and not ‘we, the people of each state.’” Judge Story 
quotes him approvingly, and then says : “ There is nothing in the 
constitution intimating it to be a compact. . . . The language is, 
we, the people of the united states, do ordain and establish this 
constitution. . . . The people do ordain and establish , not contract 
and stipulate with each other. The people of the united states , 
not the distinct people of a particular state with the people of the 
other states. The people ordain and establish a 4 constitution ,’ not 
a ‘ confederation’ ” The italics are Judge Story’s. [I. Com. § 352.] 
Webster expresses himself in a similar manner. [Speech of 1833.] 
And so does the federal supreme court, Judge Story — the above- 
quoted “ commentator ” — being the organ of the court. [1 Wheaton, 
324.] 

Ignoring or concealing Facts does not destroy Them. — It is 

unquestioned history, that each and every one of the thirteen original 
states held a convention, to ratify or reject the federal compact; that, 
after debate, the said convention did, by vote, ratify it; and that the 
said convention was elected and empowered solely by the said state, 
and only acted for her. And moreover, the will of the state was inva¬ 
riably expressed by a solemn instrument. 

Leaving these ordinances of ratification out of the argument did not 
destroy them. Did the expounders forget that the long debates upon 
them, lasting two or three years ; their final adoption by the states 
respectively in convention ; the congress receiving and declaring them 
as proof of the establishment of the compact, and as the basis of start¬ 
ing the new government, are indestructible facts in the history and 
archives of the country ? Did they forget that these ordinances show 
precisely who ordained and established the constitution 1 Did they 
forget that these ordinances alone convey life and force from the people 
to the instrument 1 And finally, did they forget that these ordinances 
show that the people acted solely as commonwealths? In looking 
into this matter, we shall see why the expounders have suppressed 
these majestic utterances. 


168 


FALLACIOUS EXPOSITION. 


Did not the People, as States, ordain? — It is true the con¬ 
stitution contains the words — “We, the people of the united states,” 
and n^t “we, the people of the state;” but this is not “the whole 
truth” The phrase in the constitution, and the one in the ordinances 
ratifying it, both refer to the authority which established the constitu¬ 
tion, and must be taken together. It would be absurd to say that the 
fathers wrote in the pact, that it should be established “ between the 
states ratifying ” by convention; and that such ratifyings “ shall 
be sufficient for the establishment of this constitution; ” recog¬ 
nized that each state could absolutely ratify or reject; and wrote in 
each ordinance of ratification : “We, the people of the state, do 
hereby assent to, and ratify this constitution and yet, that they in¬ 
tended to provide that a nation , and not states, should ordain and 
establish! 

It must be noted here, that the cause of the constitution is the sub¬ 
ject of inquiry, and not the constitution itself. As we have seen, the 
proof is direct and positive that the sole cause was the ordainers of 
the said ordinances, their thirteen separate wills being expressed in the 
said instruments, and becoming conjoint or united on the one object 
— the constitution. 

The preamble itself settles the question. It says the constitution 
was made by “ the people of the united states ” “ for the united 
states.” Itself, then, shows the pre-existent states that the people 
were. The said “people” had always acted as states. They were 
organized and capable of acting only as such. All history shows that 
they acted separately — each with her own will — in federalizing them¬ 
selves. 

Besides, that this seems self-evident, Part II. hereof gives over¬ 
whelming and conclusive proof. 

The Ordaining Instruments. — If proof of the people’s communi¬ 
cation of authority to the federal compact, law, and constitution were 
required, the instrument by itself would not serve. The only expres¬ 
sion the people ever made on the said constitution was in the thirteen 
several instruments alluded to, each of wdiich is nearly like the follow¬ 
ing, which was passed, after full and solemn debate, in the convention 
of Pennsylvania, by a vote of 46 to 23 : “ We, the delegates of the 
people of the commonwealth of Pennsylvania ... do, in the name 
and by the authority of the same people, assent to and ratify the fore¬ 
going constitution for the united states of America. Done in conven¬ 
tion . . . 12th December, 1787.” [For all the instruments see 
I. Ell. Deb. 319-337.] 

The first of these ordinances was passed by Delaware, December 7, 
1787; two other states acted in the same month ; two in January, 1788 ; 


WHO MAKES “SUPREME LAW” 


169 


one in each of the months of February, April, and May; New Hamp¬ 
shire, the ninth and complemental state, and Virginia, in June; one in 
July of the same year ; one in November, 1789 ; one in May, 1790 ; and 
Vermont, the fourteenth state to ratify, in January, 1791. It is 
hardly necessary to say that each state acted of her own motion, in 
her own time, at her own capital, and through her own conven¬ 
tion, with absolute power to ratify or reject. Said Chief Justice 
McKean in the Pennsylvania convention : “ The power of this con¬ 
vention is derived from the people of Pennsylvania, ... for the sole 
purpose of ratifying the constitution, ... or of rejecting it.” [II. Ell. 
Deb. 529.] This was the view of the advocates in all the states. 
The convention was called by the state, elected by the state, to 
represent the state ; and was to ratify or reject the federal plan abso¬ 
lutely. There was no interference, or even hint from any other state 
or states, or any nation. The association thus formed was properly 
considered to be a “ union of states,” as the constitution phrases it, 
and was styled “ the united states! ” 

The Compact required the States to ordain. — “ Ratification ,” 
by “ the states ,” was to be “sufficient for the establishment of the con¬ 
stitution, between the states, so [i. e. by conventions] ratifying the 
same : ” — these are the very words of the compact. The conclusive¬ 
ness of this language of Article VII., is hereinbefore noted [p. 154]. 
It is absolute proof that the states , as such , were to ordain the constitu¬ 
tion ; for it shows, 1st. That “ratification” is to effect the “estab¬ 
lishment.” 2d. That states are to do the “ ratification; ” and 3d. 
That, therefore, the constitution is to be established by and “ between 
the states so ratifying the same.” There is not in the constitution, 
or in contemporaneous history, any hint of any people ratifying, except 
commonwealths of people, i. e. the states. And, as if to make denial 
impossible, the states are named in the very first article of the consti¬ 
tution, as pre-existent historical and geographical bodies, and are recog¬ 
nized and provided for, throughout the instrument, as the sources of 
authority; and there is no sign that they were in any respect changed 
— much less degraded to counties or provinces. Nor is there any 
hint of the abatement of their sovereignty. On the contrary, the rec¬ 
ord proves that “ each state retained its sovereignty ,” and acted in such 
character up to the very finishing of the federal system [see Article II. 
of the first federal pact]; and that the fathers themselves contemplated 
the federating states as continuing unchanged, and as remaining, in the 
eye of public law, states or nations. Article III., § 2, Amendment XI., 
and other articles, show that the word “ states,” referring to Massachu¬ 
setts, New York and Virginia, means the technical states or nations of 
the jus gentium, just as it does when referring to France or Russia. 


170 


FALLACIOUS EXPOSITION. 


The phrase “ united states of America ” meant just what the phrase 
“ united states of Europe ” would have done — an association of sove¬ 
reignties. “ The united states of America ” was an association of 
republics, or of communities, which possessed respectively the absolute 
right of self-government — i. e. sovereignty. 

No “People,” as such, were to ordain. — But the argument is 
still stronger; for not only were the states to ratify , and, consequently, 
to ordain the constitution, through their respective conventions, but 
“the people” were not to vote or decide on the constitution at all, 
and they never did so in any mode, either directly or indirectly. On 
the contrary, they, as citizens and voters of states, under laws of the 
states, elected delegates, who, in convention assembled, were, in behalf 
of the state they were the convention of, to examine and discuss, and 
then, according to their discretion, ratify or reject the constitution. 
Each state, through her own convention, ratified. The constitution 
was ordained in this way, or never at all, for no other expression of 
the people’s will on it was ever made. May we not venture, then, to 
call the ordaining instruments ordinances'? Mr. G. T. Curtis thinks 
they are not ordinances, but more like deeds or grants. I shall 
notice the point hereafter. [See p. 188 et seqj\ 

Is not 'the reason now apparent why Story, Everett, Motley, Curtis, 
and others ignore or suppress the action of the states, and especially 
the above ordinances'? and why, when they are forced to notice the 
latter, they garble them, as they will presently be shown to have done ? 
If they admit that the states enacted the above instruments, and that 
thus alone was life and validity given to the constitution, and exist¬ 
ence and authority to the government, they admit the entire incorrect¬ 
ness of the counter-statement, which all of them have repeatedly 
made; to wit, that the nation ordained the constitution, and that, as 
it is “ the supreme law of the land,” “ state sovereignty effectua/iy 
controlled ” by it. 


CHAPTER III. 


FALSE EVIDENCE OF ESTABLISHMENT. 

INTERPRETATION No. 2. — The Constitution National. 

I F one of the expounders be asked for proof of the “ establishment 
of the constitution,” he asks in return, “ What does it say of 
itself 1 ?” [Webster,] and immediately answers from the preamble: 
“ We, the people, ... do ordain and establish,” and he further says 
this means “the people as a nation.” This deception necessitates 
various others, which are to be exposed herein. 

Now, it is of vital importance that the people should understand 
the source of constitutional authority; or, in other words, who it was 
that effected “the establishment of this constitution,” and was the 
source of its existence and power. There must be some precise and 
conclusive evidence on a subject of such paramount importance. And 
yet, on this very subject, the said expounders have most industriously, 
though perhaps unintentionally, taught false ideas, and caused con¬ 
fused notions in the popular mind. If they had really desired, in 
good faith, to make a truthful pictorial impression, they should have 
affixed to the compact the names of the states and their ordaining 
words, — these indicating precisely what gave life to it. [See Part 
II., Chapter XIII.] As far as it goes, the constitution is the evidence 
of whatever system was established, i. e. whether it was federal or 
national. But something more is necessary. It would be pettifog¬ 
ging folly to offer an instrument as evidence of the parties to it, or 
of the extent of their obligations, which lawyers had, under instruc¬ 
tions, drawn for the said principals, and had signed, — not to adopt, but 
to authenticate and recommend as their plan, — but which the prin¬ 
cipals had never signed or sanctioned. Such instrument would simply 
show what the plan was, and who devised and recommended it for 
adoption, but not bind the principals contemplated. Now, how is the 
execution and binding force of such instrument to be shown 1 Simply 
by proving the acts that gave it existence and validity. If the con¬ 
stitution were not of the class of political facts, of which the courts 
take cognizance without proof, the only possible evidence of its being 
in force in any given state, "would be that state’s act of ratification. 


172 


FALLACIOUS EXPOSITION. 


Proving this would be, in legal effect, like proving, by the party s 
signature or otherwise, the execution of any other instrument. 

The new System “ done ” only by States. — Now we prove each 
ratifying ordinance as an absolute fact. We equally prove, as a fact, 
that each was “done ” by and for a state. Hence, as no other source 
of life and power is shown, we establish it as a fact that the consti¬ 
tution was “ done” i. e. “ ordained and established ,” by thirteen states , 
as their frame of general government, and as “ the supreme law of the 
land.” This precisely accords with the provision of Article VII., that 
the “ratifications” of “nine states ” are to “be sufficient for the 
establishment of this constitution, between the states so [i. e. by con¬ 
ventions] ratifying the same.” No “ratifying ” or “establishing”but 
that of states, that is, communities of people, could have been con¬ 
templated. It was thus that the “deed ” — to use Daniel Webster’s 
phrase — was to become “executed.” It was thus that the thirteen 
“moral persons,” called states, were to form the republic of republics 
— “the united states.” 

It is absolutely untrue that the convention of 1787 represented, 
and acted for, a nation, in “ making a distribution ” of the said nation’s 
“powers between their general government and their several state 
governments; ” and “ reserving to the states ” the rights and powers they 
were thereafter to possess. The states made “ the constitution of the 
united states,” created the government, delegated its only powers, and 
reserved all not delegated; and necessarily the only restrictions upon 
states are their voluntary ones. They are self-associated bodies, — 
“united states.” 

All the history and records of the country, without the exception 
of a line, word, or syllable, aid in proving the last proposition, while 
no line, word, or syllable of the said history and records can be pro¬ 
duced to prove that a nation established our constitution of general 
government! 

INTERPRETATION No. 3. — Judge Story’s New Article. 

If we judge from what the expounders have added to the con¬ 
stitution, their “ construction ” means building or fabricating. The 
ingenuity of the above-named commentator has given us a most 
important addition. 

When on the 17th of September, 1787, the deputies of the Ameri¬ 
can states, in convention, published the plan for “the federal govern¬ 
ment of these states,” they affixed their signatures, by states, in order 
to authenticate the plan, and to recommend it. Nobody ever ventured 
to say, in so many words, that the convention ordained , or that it had 


FALSE EVIDENCE OF ESTABLISHMENT. 


173 


any more than mere advisory authority; but the peculiar circum¬ 
stances of the case afforded an opening for perversion. In his Com¬ 
mentaries, Volume II., § 1856, Judge Story says : “And here closes 
our review of the constitution, in the original form in which it is 
framed for, and adopted by, the people of the united states. The con¬ 
cluding passage of it is: ‘ Done in convention, by the unanimous con¬ 
sent of all the states present, the 17th day of September, 1787.’ . . . 
At the head of the illustrious men who framed and signed, stands the 
name of George Washington.” This is a sample of Judge Story’s ex¬ 
position ; and the phrase I have italicized, as well as the impression 
made, is entirely without foundation. Nobody — not even Judge 
Story — could prove that the words quoted were “ the concluding 
passage of the constitution ! ” [See V. Ell. Deb. 536, 555, 564.] 

Sheep follow Bell-Wethers. — In all American books the con¬ 
stitution is invariably published as “ Done in convention, by the unan¬ 
imous consent of the states present; ” and the names of the deputies 
are affixed. It is published thus — strange to say — in the book of Mr. 
A. H. Stephens. The people are thus pictorially impressed with the 
idea, that then, there, and by those men, the constitution was “ done.” 
[See Part II., Ch. XIII.] 

Men are naturally gregarious, and each flock must have a bell¬ 
wether. When a man like Story becomes accepted as a leader, his 
grex discipidorum thenceforward seem to think they need but follow 
and swallow. Many pages could here be quoted from men who think, 
and many more from that immense class who mistakenly think they 
think, to show a very general adoption of the above false idea of the 
origin of our federal system; for example, the New York World of April 
8th, 1864, said, “The constitution was a federal compact , done in con¬ 
vention by the unanimous consent of the states present.” The so-called 
Massachusetts school, generally, pretend to regard the “ consent ’ re¬ 
ferred to, as the basis of the federal constitution, though they know 
the function of the convention was merely to make a plan; and that 
the real and only consent, and vitalizing force, was given by states, 
and through the separate conventions of these bodies. And they in¬ 
timate, rather than broadly assert, that the people of the states, by 
ratifying, consented to take place and rank, as fractional parts of a 
nation, much as companies, by order, merge themselves in a regiment, 
or divisions in an army. Indeed, Daniel Webster, in his speech of 
1833, and George T. Curtis, in his letters to the New York World, in 
1867, speak of this very consent, as the forming of a national society by 
social compact. Such is the “ interpretation ” of the “ school! 

The Blind leading the Blind. — This seems to be not only the 
view of Story, Webster, and Curtis, but it is the idea of Buchanan, 


174 


FALLACIOUS EXPOSITION. 


Lincoln, Andrew Johnson, Reverdy Johnson, Robert J. Walker, Geo. 
H. Pendleton, et omne genus , as well as of all those “ black spirits and 
white, red spirits and gray,” that “ mingled ” in the Philadelphia con¬ 
vention of 1866. To show how these able and generally conservative 
men, being deluded themselves, mislead the people, I quote the follow¬ 
ing from a speech of the last-named — who is one of the most dis¬ 
tinguished of the alumni of the Massachusetts school — at Bangor, 
Maine, in 1868 : “ I bow myself in reverence before the form of 
government which has bound these mighty states together, and which 
has reconciled their different and discordant interests into the harmony 
of one people, and one government. The men of 1787 were self-deny¬ 
ing men. They feared consolidation of power. They put behind them 
all the allurements of imperial pomp. They denied themselves the 
fascinations of a strong government. They contented themselves with 
the simplicity of confederation. They committed to the federal gov¬ 
ernment inter-state and international affairs. All the rest, they 
reserved to the states themselves. Within this narrow sphere, they 
made the federal government supreme. All beyond remained to the 
unimpaired sovereignty of the several states.” The italics are my 
own. 

These are substantially the views of the most of the conservative men 
and presses of the Massachusetts school. Nay, more, there is hardly 
an inharmonious buzz in the whole hive. The “ public convictions,’’ 
caused by their teachings, seem to be inveterate, that some high 
authority, other than the states, distributed powers to the general and 
state governments; giving supremacy to the former, so that to the 
extent of its powers, “ state sovereignty ”— to use Webster’s phrase — 
“is effectually controlled.” All this is not only sophistical, but untrue, 
and so fully contradicted by our history, that it cannot be innocently 
repeated by one who is not ignorant of the subject. 

INTERPRETATION No. 4. — The States not Named. 

That the states are not named in the constitution is a common 
assertion hard to account for ; though, in politics and war, fictions are 
often better for temporary use than facts; and in 1861, Everett, Motley, 
and others evidently saw that the “ public convictions ” needed 
strengthening by statements not strictly historical. 

I shall simply quote the gentlemen named, and then quote the con¬ 
stitution, leaving the reader to decide between them. 

Mr. Everett said [see I. Rebellion Record, 9] “ That instrument 
does not purport to be a compact, but a constitution of government. 
It appears in its first sentence, not to have been entered into by the 


FALSE EVIDENCE OF ESTABLISHMENT. 


175 


states, but to have been ordained and established by the people of the 
United States, for ‘themselves and their posterity/ The states are 
not named in it; nearly all the characteristic powers of sovereignty 
are expressly granted to the general government, and expressly pro¬ 
hibited to the states,” etc. 

John Lothrop Motley, since Minister to England, in a letter to the 
London Times in 1861, on “the cause of the civil war,” [I. Reb. 
Rec. 209] said : “ It was not a compact. Who ever heard of a com¬ 
pact to which there were no parties ^ or who ever heard of a compact 
made by a single party with himself 1 ? Yet the name of no state is men¬ 
tioned in the whole document ,” etc. 

Each State put her Name in the Compact. — Federal Consti¬ 
tution, Art. I., § 2 — “ Representatives and direct taxes shall be 
apportioned among the several states. . . . The number of representa¬ 
tives shall not exceed one for every 30,000, but each state shall have at 
least one representative ; and until such enumeration shall be made, 
the state of New Hampshire shall be entitled to choose 3, Massachu¬ 
setts 8, Rhode Island 1, Connecticut 5, New York 6, New Jersey 4, 
Pennsylvania 8, Delaware 1, Maryland 6, Virginia 10, North Caro¬ 
lina 5, South Carolina 5, and Georgia 3. When vacancies happen in 
the representation from any state, the executive authority thereof shall 
issue writs of election to fill such vacancies.” 

We can now see why the “ expounders ” should get out of the loose 
preamble or preface, into the constitution itself. The very first article 
convicts them of two cardinal and flagrant mistakes. 1st. That the 
states are not named in the constitution. 2d. That the members of 
the lower house of the congress are the representatives of the people 
at large, i. e. of the nation, and not representatives of the political 
bodies called states, in which form alone “ the people ” existed, and 
could politically act. This matter will be discussed elsewhere. 


CHAPTER IV. 


SOME SAMPLES OF “ SOPHISMES ” 

INTERPRETATION No. 5. — The Supreme-law Clause. 

T HE climax of all the Massachusetts school’s arguments of “ in¬ 
terpretation,” is, that “ This constitution shall be the supreme 
law of the land.” If one ask — whose “constitution” or whose 
“ supreme law ” is it 1 Who made it 1 Whose “ land ” is referred to f 
Over what subjects is it “ the supreme law ” 1 the ready answer is 
another segment of the sophistical circle, viz., “‘We, the people’ — 
as a nation — ‘ do ordain and establish this constitution.’ ” 

It is obvious that all “ the people,” at the time of forming the con¬ 
stitution, were states. The association continued to be “ the united 
states,” as it had been under the previous constitution. “ The peo¬ 
ple” remained “the people of the united states,” the instrument of 
union, “ the constitution of the united states,” hnd the general gov¬ 
erning agency, “ the government of the united states.” These are 
the very phrases of the constitution. They plainly mean that 
“ the people,” “ the constitution,” and “ the government,” belong to 
the said states, — “ the united [or associated] states.” 

The people chose to be, and remain, organized as states; and they 
were incapable of political action in any other form. Being republics, 
sovereignty, or the right of self-government, necessarily resided in each. 
As Wilson, of Pennsylvania, and other fathers, explained : “ the sove¬ 
reignty is in the people before they make a constitution, and remains 
in them after it is made.” 

As republics, they intended to govern — not be governed. Of their 
constitutions, or frames of government, the federal one is “ the su¬ 
preme law of the land.” It is the “law” (*. e. the expression of the 
will) of the conjoint law-makers, — not above them, but above their 
subjects, and their agencies of government. Their constitution can 
be no law over them, for as to them it has no sanction or means of 
enforcement. A law without a sanction is no law. 

Many politicians seem to have vague notions on this subject. Hon. 
A. H. Stephens, in his “ War between the States,” p. 40, says: “ The 


SOME SAMPLES OF “ SOPHISMES.” 


177 


exercise of supreme law-making power, even over the authority dele¬ 
gating it, may be legitimate so long as the delegated power is unre¬ 
sumed.” Is there ever such an “exercise”! Mr. Stephens ought to 
explain, with illustrations. 

The Fathers’ Idea of “ the Supreme Law.” — The plain and simple 
idea of the fathers was this : The states, being constitutors of the 
constitution, ordained that where conflict should arise between this 
and any other law of the land, this should be supreme, — all laws be¬ 
ing expressions of their wills; federal laws being made by their joint 
will , and state laws by their several wills. 

Said Hamilton — meeting this very claim of Messrs. Webster and 
Story—then, a charge, by enemies, of danger in the clause: “ The word 
* supreme 5 imports no more than this, that the constitution and laws 
made in pursuance thereof, cannot be controlled or defeated by any 
•other law. . . . But the laws of congress are restricted to a certain 
sphere, and when they depart from this sphere, they are no longer 
supreme, or binding. In the same manner, the states [he meant the 
state governments] have certain independent powers, in which their 
laws are supreme.” Again, he said : “ The laws of the united states 
are supreme, as to all their proper constitutional objects. The laws 
of the states are supreme in. the same way.” [II. Ell. Deb. 362.] 

Said Judge Iredell, in the North Carolina ratifying convention, 
about said supreme law: “ What is the meaning of this 1 . . . It is 
saying no more than that, when we adopt the government, we will 
maintain and obey it; in the same manner, as if the constitution of 
the state had said, that when a law is passed in conformity to it, we 
must obey that law. Would this be objected to ! Then, when con¬ 
gress passes a law, consistent with the constitution, it is to be binding 
on the people. If congress, under pretence of executing one power, 
should, in fact, usurp another, they will violate the constitution.” 
[IV. Ibid. 178-9.] 

Said William R. Davie, in the same convention : “ Every power 
ceded by it must be executed. ... It is not the ‘ supreme law ’ in 
the exercise of a power not granted. ... To vest the federal govern¬ 
ment with power to legislate, and then deny supremacy in the laws, 
is a solecism in terms.” [Ibid. 182.] 

Judge Parsons, afterwards the celebrated chief justice of Massa¬ 
chusetts, said the same thing in substance, in the ratifying convention 
of that state : “ an act of usurpation is not obligatory ; it is not law." 
[II. Ell. Deb. 94.] 

It is needless to quote further, for these were the opinions of all. 
The truth is, the supreme-law clause of the constitution was a mere 
emphasis of a fact or principle, — the enunciation of a truism. Any 

12 


178 


FALLACIOUS EXPOSITION. 


and every law is supreme, in the sense intended, when there is no 
conflicting law above it — even, for instance, the order of a parent to 
a child, or a master to a servant. Any rule, within an authorized 
sphere, and on a rightful subject, is supreme, from the decree of an 
autocrat down to the ordinance of a town council. And, in the very 
nature of things, the compact of t^ie states overrides their home and 
peculiar laws, even without the phrase I speak of; for the very en¬ 
gagement of the parties, to which their faith is pledged, is that no 
one of them shall nullify, defeat, or even interfere with, what all, for 
the common good, have agreed on. If the nations of Europe were 
to federalize themselves to-day, each would proceed to-morrow to make 
every home and local law conform to the treaty. The idea is as old 
as international agreements, that a state’s compact with other states 
is “ the supreme law of the land ” in her territory ; and all her courts, 
upon finding any other law conflicting with it, would necessarily and 
dutifully decide it to be “supreme.” 

Moreover, it is absurd to suppose the commonwealths created a 
government and delegated to it authority and means to destroy them. 
Nay, more, the fathers unanimously excluded from the constitution 
all power and means of contending against the will of a state, saying 
that the coercion of a state was “ visionary and fallacious ” [Madison], 
“one of the maddest projects ever devised” [Hamilton], and equiva¬ 
lent to “ war ” [Randolph, Ellsworth, and others], and all agreed that 
it was inconsistent with the voluntary union of states which was aimed 
at by all: and finally, if this “ supreme law of the land ” is over the 
states, individually and collectively, why did Messrs. Seward, Greeley, 
Everett, and others, admit the want of power, in the general govern¬ 
ment, to coerce the states 1 and why are so many misstatements and 
sophistries needed to strengthen the “ public convictions,” and give 
ease to the public conscience on this subject ] 

The Expounders prove too much. — If the constitution is a law 
over one state, it is over all, — “the united states,” even, being sub¬ 
ordinate ; and Lincoln was right in his expression that “ the states 
have no status or rights ” except those “ reserved to them by the nation, 
in its constitution.” In other words, the stupid states have put their 
“supreme law” over, and thereby subjugated, themselves : and given 
their own citizens and chosen agents full power to coerce their obe¬ 
dience. 

INTERPRETATON No. 6. — Partly Federal and partly National. 

In Article 39 of the Federalist are to be found several little sen¬ 
tences, which have done much detached duty in the great contest — 


SOME SAMPLES OF “SOPHISMES. 


179 


supposed to be a logical one — as to whether the constitution is a com¬ 
pact or not. The expounders use them to prove that our general 
polity is partly federal and partly national in character, — the national 
part predominating ; so that, practically, we are a great political unit, 
made up of municipal fractions, called states but really counties, 
and that “so far as the constitution goes, so far state sovereignty 
is effectually controlled.” [Webster.] One of these sentences is the 
heading hereof. 

None of “ the writers of the Federalist” or other fathers hinted at 
any nation acting in the premises, or at the states being reduced to 
provinces or counties. In the article alluded to, Mr. Madison said, 
“The act establishing the constitution will not be a national but a 
federal act.” “ Each state ” is to ratify, continued he, “ as a sovereign 
body,” and is “ only to be bound by its own voluntary act.” “ In this 
relation, then, it will be a federal and not a national constitution.” He 
then shows how, in their compact, the sovereigns, as to the certain 
matters provided for, treat their aggregate subjects as a nation ; and 
concludes that “ the proposed constitution ” is “ neither a national 
nor a federal one, but a composition of both,” i. e. it is federal in the 
establishment of it, but, pro tanto , national in operation. 

Mr. Madison’s obvious meaning was, that the states, as separate 
parties, each acting with her own will, compacted to establish the 
constitution, and agreed therein to govern their respective subjects 
together, as to the general matters the constitution was made for; 
thus treating them as if a nation. And the true idea is, that so far 
as the federal compact goes, the people are quasi a nation — not in 
political existence, organism, or power, but as subjects of government. 
It is also true that the constitutors and components of that nation 
are the states, and that the people of that nation are entirely, exclu¬ 
sively, “ and absolutely ” the “ citizens of different states,” and, of 
course, the subjects thereof. 

Articles III., § 2; IV., § 2 ; and the 11th Amendment, show that 
there were no citizens of a nation ; and Article I. names the states as 
pre-existent bodies, while the whole instrument contains no hint of 
their change in name (either proper or technical), geography, organ¬ 
ism, or political authority; but, throughout its whole extent, recog¬ 
nizes and provides for them as the parties to it, the actors under 
it, and the sources of all federal elections and federal power. In 
short, the phrase — “ the united states,” makes and ends the whole 
argument. 

The Senate Federal — the House National. — The mixed char¬ 
acter is pretendedly inferred from another source. In illustrating it, 
the expounders allege that the senators are to represent states, but 


180 


FALLACIOUS EXPOSITION. 


that “the house of representatives will derive its power from the 
people of America.” “The people of America” are, of course, the 
nation, — the states being the provinces. The very number (39) in 
which the above phrase is used, refutes the perverters a thousand 
times over. But let us ask the constitution itself, whose representa¬ 
tives they are ? who they are elect6d by ? and whose power and means 
they officially use 'l 

1. Article I., § 2, says the representatives are to be “chosen every 
second year by the people of the several states .” 

2. “ The electors \i. e. the voters] in each state ” are to be such as 
the state authorizes. [Ibid.] 

3. Representatives “ shall be apportioned among the several states 
which may be ... in this union” according to numbers. [Ibid.] 

4. “ Each state shall have at least one representative .” [Ibid.] 

5. The same article and section names the states, and fixes the 
number each state shall “ be entitled to choose ” till the apportionment. 

6. The same article provides for the governor issuing writs of election 
for filling vacancies in “ the representation from any state f 

Note also the following, in Article II. § 1 : “ Each state shall appoint, 
in such manner as the legislature thereof may direct, a number of 
electors equal to the whole number of senators and representatives to 
which the state may be entitled in the congress.” 

We find, then, that “ each state shall have ” these agents, and each 
“shall be entitled to choose ” them. Voting powers and eligibility to 
office are fixed, of original right, by the state, and are confined to her 
own citizens and members. It is obviously not the people at large, 
but societies of people, that are to be represented ; and it is equally 
obvious that republics, for federal self-government, are to send repre¬ 
sentatives, as well as senators, to a congress of themselves. 

The point of distinction between the consolidated and the federal 
form is the individuality of states, and their complete independence 
of will, which we shall always find to have been carefully pre¬ 
served. 

How purely mythical, then, is the national idea commonly taught! 
Not a line in all American history or records agrees with it. Every¬ 
thing shows the polity to be a federation, i. e. “ the united states.” 
The instrument evidencing it is properly called the federal constitu¬ 
tion. So far, however, as the states have willed that it should be, it 
is national in operation upon their citizens, and it is national to, the 
outside world. Madison, Hamilton, and all the fathers said the con¬ 
stitution did not attempt to consolidate the states, but contemplated 
them as absolutely sovereign commonwealths, in league for self-preser¬ 
vation and self-government. [See Part I., Ch. VII.] 


SOME SAMPLES OF “ SOPHISMES. 


181 


INTERPRETATION No. 7. — “ Reserved to.” 

The expounders assume —1. the nation ; 2. the supreme-law dogma; 
and 3. the subjection of the states to this supreme law ; and pick 
little crumbs of comfort, if not support, out of detached phrases, with 
which their theory is consistent, though it is inconsistent with the 
constitution and every fact of history, and especially with truth and 
justice! 

The states — said Lincoln — have no “ status ,” or “ power,” but 
what is “reserved to them,” in the constitution, by the nation — in 
other words, no rights but those the nation has allotted to them in its 
supreme law. Amendment X. reads : “ The powers not delegated to 
the united states by the constitution, . . . are reserved to the states 
respectively, or to the people : ” thus showing that all the powers 
granted or vested by the constitution are delegated ; and that all which 
the delegators did not put in the constitution, they must have kept 
out. This is the necessary meaning of “ reserved ” in the 10th 
amendment, and “ retained ” in the 9th. 

Why w T as the phrase “ reserved to,” used 1 I shall try to show in 
the proper place, that, (as Livingston, Hamilton, Madison, Marshall, 
and others viewed it,) the people, as commonwealths, were respectively 
distributing their powers between their home and their federal gov¬ 
ernments; and in “reserving” or “retaining” powers and rights, 
they had to reserve to the state governments , where many already were, 
or to themselves , who owned all the residue. It must be kept in mind 
that in the common parlance of those days, “ state ” was convertible 
with “state-government,” as well as w T ith the commonwealth of 
people. 

If it be kept in mind that the states are speaking; that they are 
delegating, and they reserving; that there are, politically, no other 
people than states, and no other states than people, we shall see clearly 
that the phrase “ to the states, or to the people” meant to the state 
governments, or to the states. Of the correctness of this view, New 
York and other states give conclusive proof. Her language is “Every 
power . . . which is not . . . delegated to the . . . departments of 
the government . . . remains to the people of the several states, 
or to their respective state governments, to whom they may have 
granted the same,” [See also App. E. No. 2, and illustration, p. 310, 
infra.\ 


CHAPTER Y. 


GARBLINGS. 

INTERPRETATION No. 8. — Garbling the Ratifications. 

I N his “Commentaries” [Vol. I., § 356] Judge Story says: “It 
was, nevertheless, in the solemn instruments of ratification by 
the people of the several states, assented to, as a constitution. The 
language of these instruments uniformly is, ‘ we, &c., do assent to and 
ratify the said constitution .’ ” The reader will please note the “ &c.” 
Judge Story further says, that the language of the conventions of 
Massachusetts and New Hampshire is peculiar, and he professes to 
quote it, as follows : “ The convention, &c., acknowledging, with grate¬ 
ful hearts, the goodness of the Supreme Ruler of the universe, in afford¬ 
ing to the people of the united states, in the course of His Providence, 
an opportunity, deliberately and peaceably, without force or surprise, 
of entering into an explicit and solemn compact with each other, by 
assenting to and ratifying a new constitution , &c., do assent to, and 
ratify, the said constitution.” Please note, in this extract, two cases 
of “&c. •” also Judge Story’s italics. Daniel Webster, in his speech 
of 1833, [III. Webster’s Works 476,] garbles this ratification as Judge 
Story does, so that the present expose applies equally to him. It is 
the opinion of some, however, that Mr. Webster was often misled, as 
to facts, by the investigators he confided in. 

And we find the same mysterious and suspicious “ &c.,” in all the 
quotations the writers of the school make from the ratifications. For 
fuller exposure, it is well to bring several to view. E. D. Mansfield, 
in teaching political truth to the young people of our country, says, 
on page 171 of his “ Political Grammar “ The language of the rati¬ 
fications is remarkably uniform and remarkably explicit, as to the 
source whence the constitution receives its authority and force. All 
the ratifications commence, ‘We, the delegates of the people thereof,’ 
and all terminate by making their ratifications in the name of their 
constituents, the people.” This is evidently a studied statement. One 
or two more will suffice out of many I have before me. During 
the war, an enterprising American in England, under the auspices of 



GARBLINGS. 


183 


the United States Legation, got up a “ Bacon’s Guide to American 
Politics,” for the purpose of preventing the English people and gov¬ 
ernment from sympathizing with and favoring the South, in which 
“ Guide ” the same deception is practised, as follows : “ All the ratifi¬ 
cations commence with ‘ We, the people,’ and all terminate by making 
the ratifications ‘ in the name of our constituents, the people.’ Thus 
the states, in their official capacity, proposed the constitution, . . . 
but it receives its sanction and validity from the whole people, in their 
sovereign capacity.” 

And Mr. George Ticknor Curtis, in a letter to Edward Everett, 
dated June 3, 1861, wrote that “the duly authorized delegates of the 
people of South Carolina executed an instrument, under seal, declar¬ 
ing that they, ‘ in the name and behalf ’ of that people, assent to and 
ratify the said constitution.” 

Now, what does “&c.,” or the ellipsis, mean, in all these quotations'? 
or, rather, what does it hide 1 Simply this : it conceals words which 
completely refute the assertions made, and conclusively prove that the 
people, as independent states , — organized and acting as such, — and 
not the people as a nation , are the parties to the federal constitution, 
and the sole sources of its authority, and that this instrument evi¬ 
dences a federation of sovereignties. And, if the above writers did 
not think so, why did they invariably suppress the pith of these 
ordinances 1 Indeed, they could not have believed otherwise. 

The true Versions. — Referring generally to the acts of ratifica¬ 
tion, all to be found in I. Elliott’s Debates, 319-337, I will copy the 
ordaining words of two or three of them, so that the reader can see, 
in juxtaposition, the garbled and the true expressions. Here are the 
suppressed words, and the very pith, of the ratification of Judge Story’s 
own state : “ The convention ” [here follow the introductory words 
above quoted, which the reader must recur to, in order fully to appre¬ 
ciate the matter] do, in the “ name and in behalf of the people of the 
commonwealth of Massachusetts, assent to and ratify the constitution 
for the United States of America.” The ratifying act passed by a 
vote of 187 to 168. 

Here is the pith of the act of New Jersey: “ In convention of the 
state of New Jersey, . . . we, the delegates of the state of New Jer¬ 
sey, ... do hereby, for and on the behalf of the people of the said 
state of New Jersey, agree to, ratify, and confirm the same, and every 
part thereof.” Passed by unanimous vote. 

Here is the substantial portion of Virginia’s ordinance : “We, the 
delegates of the people of Virginia, . . . now met in convention, . . . 
in the name and behalf of the people of Virginia, do, by these presents, 
assent to, and ratify the constitution recommended, . . . hereby an- 


184 


FALLACIOUS EXPOSITION. 


nouncing to all whom it may concern, that the said constitution is 
binding on the said people.” Vote, 89 to 79. 

Here are the words of Georgia: “. . . We, the delegates of the 
people of the state of Georgia, in convention met, ... do, in virtue 
of the power and authority to us'given by the people of the said state 
for that purpose, for and in behalf of ourselves and our constituents, 
fully and entirely assent to, ratify, and adopt the said constitution.” 
Vote, unanimous. All the ordinances are in substance the same; and 
all contain the word “ ratify,” referring to the act of the political 
body, — the state. 

What was the Motive? —Now, the purpose of these garblings is 
obvious. If the perverters had written and printed the suppressed 
passages, they would have destroyed their theory, for the words sup¬ 
pressed show the states to be the only possible creators and delegators. 
But, while thus engaged, they often unwittingly recognize these acts 
of ratification, as conveying from the organized people, i. e. the com¬ 
monwealths, the entire life and strength of the constitution. For 
example, see the above words of Judge Story: “The people of the 
several states assented to the said constitution, by “ solemn instru¬ 
ments of ratification .” This admits all I claim, for no one pretends, 
that the original “ establishment ,” i. e. the vitality and validity of the 
pact or constitution, could come from any other source than these acta 
of nine or more states, spoken through nine or more conventions. An 
instrument prepared by the deputies of thirteen such parties, which 
the said parties consecutively and independently adopt, and which 
contains their provisions for the general government of their people, 
must be a federalizing instrument, whether sanctioned by signature, 
seal, proxy, delegation, convention, commissioners, ambassadors, or any 
other mode and means of expressing will; and the product of such 
instrument is necessarily a federation, i. e. a union of states. How 
can any intelligent man, in the face of these facts, innocently assert 
that our general polity is an association of people as a nation, instead 
of a society of commonwealths — a republic of republics — “ the united 
states ” % What chance have facts, compacts, reason, argument, -and 
the sacred faith of the fathers, against the so-called Massachusetts 
school, with its command of the press; and where its disciples con¬ 
stantly speak and write such errors as are in the following extract 
from Motley’s letter to the London Tifties, heretofore quoted from; 
“. . . The name of no state is mentioned in the whole document; 
the states themselves are only mentioned to receive commands or pro¬ 
hibitions, and the people of the united states is the single party by whom 
alone the instrument is executed. The constitution was not drawn up 
by the states, it was not promulgated in the name of the states, it was 


GARBLINGS. 


185 


not ratified by the states. The states never acceded to it, and possess 
no power to secede from it. It was ordained and established over 
the states by a power superior to the states, — by the people of the 
whole land, in their aggregate capacity, acting through conventions of 
delegates, expressly chosen for the purpose, within each state, etc.” 
[I. Reb. Rec. 211.] Every sentence of the above is directly and posi¬ 
tively contradicted by the history and records of the country, as here¬ 
tofore shown, and as we shall constantly see. 

INTERPRETATION No. 9. — Garbling the Federalist. 

Many instances of this ingenuity on the part of some of the later 
<( best minds of Massachusetts ” could be given, but it is presumed 
the following will suffice. An American politician considers himself 
quite fortunate, if he can ' quote an apposite and forcible passage of 
the Federalist, to prove his contention. In quoting to prove his. 
Judge Story says : “It is truly remarked by the Federalist (Article 
39), that the constitution was the result, neither from a decision of the 
majority of the people of the union, nor from that of a majority of the 
states. It resulted from the unanimous assent of the several states 
that are parties, differing no otherwise from their ordinary assent than 
its being expressed, not by the legislative authority, but by that of the 
people themselves.” He professes to give the substance, but abstracts 
what is merely prefatory to the gist of the passage, and leaves off, so 
as to convey the impression of a national constituency, or the “ we- 
the-people ” idea, to prove which is the great end of his argument. 
Here is what next follows : “ Were the people regarded, in this trans¬ 
action, as forming one nation, the will of the majority of the whole 
people of the united states, would bind the minority. . . . Each state, 
in ratifying the constitution, is considered as a sovereign body, inde¬ 
pendent of all others, and only to be bound by its own voluntary act. 
In this relation, the new constitution will, if established, be a federal , 
and not a national, constitution.” This is decisive on the very point 
Judge Story was discussing, and it destroys him completely; and he 
recognized this by suppressing the passage confuting him, while quoting 
its antecedent, which seemed to support him. And the careful reader 
will find that all of Judge Story’s arguments and multitudinous cita¬ 
tions, on the great subject of “the nature of the constitution,” are so 
delusive, that full examination is necessary. 

An Effort of Daniel Webster in this Line. —Mr. Webster also 
culled expressions and facts to suit his purpose, and failed in accuracy 
as to contexts and historical explanations. An instance like the above 
is the following, from his speech of 1833. He asserts that the 


186 


FALLACIOUS EXPOSITION. 


writers of the Federalist declare that “ the fabric of American em¬ 
pire ought to rest on the solid basis of the consent of the people ” 
[capitals in the text] ; and he uses this expression of the said 
writers, and the immediate context, to refute the idea of pact, and to 
show that a nation was formed.' He did not seem to know that this 
expression, found in Number 22, refers to the first federation being 
made by delegative, instead of original, power; and simply meant 
that the people of the states, and not their legislatures, were to ordain 
and establish the new pact. He did not seem to reflect that, not only 
were the people of the commonwealths the only people, but that, as 
has been shown, they could politically act only as states; and that 
their several absolutely independent acts made them “ united states,” 
as they agreed to call themselves. 

He then goes on to declare, that “the powers conferred on the new 
government, were perfectly well understood to be conferred, not by any 
state, or the people of any state, but by the people of the united 
states.” And, finally, he improperly quotes the ratifications of Vir¬ 
ginia, Massachusetts, and New Hampshire to prove his view; and 
then proceeds to say: “ Indeed, sir, if we look to all contemporary 
history, — to the numbers of the Federalist, to the debates in con¬ 
ventions, to the publications of friends and foes, —they all agree that 
a change had been made from a confederacy of states to a different sys¬ 
tem.” Now, all these statements are unfounded, and the authorities 
he refers to, flatly contradict him. For instance, “the writers of the 
Federalist,” instead of calling the system a nation or state, in any 
technical sense, repeatedly characterize it as a “ confederacy.” [See 
again Part I., Chap. VII.] Instead of saying the general government 
rests on the “ basis of the consent of the people ” as a nation, they 
say that “each state ratified” “as a sovereign body,” and is only 
“bound by its own voluntary act.” [Number 39.] Instead of saying 
the powers are conferred on the new government by the people of 
the united states as a nation, they say “ the states ” alone “ delegate ” 
them. Instead of saying the people compact to form a nation, they 
say “ thirteen independent states ” are “ the parties to the compact,” 
forming “ the confederacy.” [Number 85.] 1 Finally, in direct oppo¬ 
sition to all that this expounder asserts, they say “ the states are 
regarded as distinct and independent sovereigns ... by the consti¬ 
tution proposed.” [Number 40.] 

With but slight investigation, the expounders could have found 

1 This very article, written by Hamilton, contains the expression, “A nation without 
a national government is an awful spectacle.” This, like the “ we-the-people ” sen¬ 
tence and others, long did much “ detached service” in forming the aforesaid bellicose 
“ public convictions.” 


GARBLINGS. 


187 


numerous proofs like these, covering and deciding the very points of 
controversy. But their search was — like that of most persons who 
adopt the theory before they ascertain the facts — only for short and 
convenient passages to sustain foregone conclusions. And even the 
so-called “ state rights ” men of the original states neglect these truths, 
which sparkle like gems wherever, in the archives and constitutions of 
the said commonwealths, they look ! 


CHAPTER VI. 




ADROIT SUBSTITUTIONS. 


INTERPRETATION No. 10. — Changing Terms and Meanings. 
HEN, in 1861, Mr. Edward Everett was preparing his address 



vv to strengthen the “public convictions” against the South, 
and against his own previous utterances, 1 he saw that the thirteen 
ratifications w T ere the only means of communicating the power of the 
people to the federal compact; that each of these ratifications was 
passed by the highest legislative body known — the one usually 
employed by the people in such sovereign action ; and that the acts 
of such bodies were generally considered to be of the character of or¬ 
dinances or enactments. He saw that, for his argument, “ ordinance ” 
was a bad name, for the reason that the power of enactment and that 
of repeal are commensurate ; and hence in order to refute the seces¬ 
sionists, he conceived the idea of substituting “ deed ” for “ ordi¬ 
nance,” and thereby getting a more favorable definition, to assist in 
producing the desired “ public convictions.” 

So, in his address of the 4th of July, 1861, we find him speaking 
of South Carolina’s ordinance of secession as follows : “ It was in¬ 
tended, by calling the act of ratification an ordinance, to infer a right 
of repealing it, by another ordinance. It is important, therefore, to 
observe that the act of ratification is not, and was not, at the time, 
called an ordinance, and contains.nothing which by possibility can be 
repealed.” [I. Reb. Rec. 8.] 

But, as if lacking confidence in this link of his feeble chain, he 
wrote to “ the learned and accurate historian of the constitution,” 
Mr. George Ticknor Curtis, who strengthened it as follows : “I have 

1 In 1826, Mr. Everett was in Congress, and a warm defender of the states. He then 
agreed, with Mr. Jefferson, that “the constitution of the united states is a compact of 
independent nations.” [VII. Jefferson’s Works.] On May 29, 1860, he wrote to Wash¬ 
ington Hunt against coercion, and said our “union of co-equal sovereign states re¬ 
quires, as its basis, the harmony of its members, and their voluntary co-operation in 
its organic functions.” On February 22, 1861, he wrote: “ To expect to hold fifteen 
states in the union by force, is preposterous. ... If our sister states must leave us, in 
the name of Heaven, let them depart in peace.” 


ADROIT SUBSTITUTIONS. 


189 


looked carefully at the ratification,” and found it to be “much more 
in the nature of a deed, or grant, than an ordinance. An ordinance 
would seem to be an instrument, adopted by a public body, for the 
regulation of a subject, which, in its nature, remains under the regu¬ 
lation of that body; — to operate till otherwise provided for; ” while 
“ a deed, or grant, operates to pass something; and, unless there be a 
reservation of some control over the subject-matter by the grantor, 
his cession is necessarily irrevocable. . . . These distinctions are appli¬ 
cable to the cession of political powers by a people. . . . The question 
submitted to the people of South Carolina by the congress, was, 
whether they would cede the powers of government, embraced in an 
instrument sent to them. ... In other words, they were asked to 
make a grant of those powers. When, therefore, the duly authorized 
delegates of the people of South Carolina , executed an instrument under 
seal , declaring that they , 1 in the name and behalf ’ of that people, ‘ assent 
to and ratify the said constitution ,’ I can perceive no propriety in call¬ 
ing this deed an ordinance.” 

At the very outset, Mr. C. unwittingly shows the impropriety of 
calling the “ordinance” a “deed.” The act he treats of, was “an in¬ 
strument adopted by a public body, for the regulation of a subject, 
which, in its nature, remains under the regulation of that body.” 
What that “public body” was, Mr. C. well knew, for the following 
words, which he did not quote, were at the head of the very “ ordi¬ 
nance ” which he pretends is a “ deed.” “ In convention of the people 
of the state of South Carolina.” That “ body ” was a republic, and 
the subject of the action was self-government, which was never in¬ 
tended to be alienated, but was to remain forever and ever “ under 
the regulation of that body.” So much for his artifice of exchanging 
words to get an advantage in definition. He succeeded in showing 
the absolute propriety of calling the “ deed ” an “ ordinance.” 

And it is untrue that Congress “ submitted ” any question to the 
people, or the convention of South Carolina, at least in any such 
sense as Mr. Curtis implies ; and even the “ convention of states ” did 
not do so; but South Carolina submitted a question to herself — her 
legislature speaking her voice in the submission. The following is an 
extract from the very ratification Mr. C. “ looked carefully ” at: “ The 
convention having maturely considered the constitution or form of 
government, reported to Congress by the convention, . . . and sub¬ 
mitted to them by a resolution of the legislature of this statef etc. 

Again, Mr. Curtis incorrectly represents the matter of ratifying. 
The convention of South Carolina sat and deliberated for her alone, 
acting exclusively with her power. The very beginning of the act is 
as follows : “ In convention of the people of the state of South Carolina, 


190 


FALLACIOUS EXPOSITION. 


by their representatives, held in the city of Charleston,” etc. After 
full discussion of the federal plan, South Carolina, in convention, by 
a vote of 149 to 73, passed, enacted, or ordained, the following : “ The 
convention ... do, in the name and behalf of the people of this state , 
hereby assent to, and ratify the said constitution. Done in conven¬ 
tion, 23d day of May, a. d. 1788.” 

In the following particulars also, Mr. Curtis’ statement is “ conspic¬ 
uously inexact.” 1. He implies that “the duly authorized delegates ” 
represent “ the people of South Carolina,” as a mass of individuals, a 
mere fraction of the nation, doing its part in the establishment of the 
constitution ; and not as a political body. He seems to forget that 
said delegates could only act as a body, and for a body. 2. To help 
out the “deed” idea, he calls it an instrument under seal, though it 
has none of the peculiarities of one. The authority executing the 
instrument probably affixed no seal, the president and secretary using 
theirs merely for authentication. The convention could hardly have 
had a seal, and that of the state, most likely, could only have been 
used by the governor or secretary of state, who had no official con¬ 
nection with the act. 3. He ignores the “ convention of the people of 
the state of South Carolina ” altogether. 4. He even garbles, to avoid 
quoting the word “ state,” as it would bring to view the political body 
acting. 5. He leaves out the vote, which shows beyond question that 
assenting to, and ratifying, was done by a body-politic. As he does 
all these things, and more, in the thirty-five words I have underscored 
above, he must rank as the leading expounder of the present day. 

But let us quote more of this astounding letter. Mr. C. continues 
that “there are those who pretend that the most absolute and unre¬ 
stricted terms of cession, which would carry any other subject entirely 
out of the grantor, do not so operate, when the subject of the grant 
is political sovereignty; but a political school which maintains that a 
deed is to be construed in one way, when it purports to convey one 
description of right, such as political sovereignty, and in another, 
when it purports to convey a right of another kind, such as property, 
would hold a very weak brief in any tribunal of jurisprudence, if 
the question could be brought to that arbitrament. The American 
people have been much accustomed to treat political grants, made by 
the sovereign power without reservation, as irrevocable conveyances, 
and executed contracts; and, although they hold to the right of revo¬ 
lution, they have not yet found out how a deed, absolute on its face, 
is to be treated in point of law as a repealable instrument, because it 
deals with political rights and duties.” 

If these are the real views of Mr. Curtis, he has utterly failed to 
“ rise to the height of the great argument ” of a republic. The people, 


ADROIT SUBSTITUTIONS. 


191 


whether states or a nation, were establishing institutions of self-gov¬ 
ernment. To remain republican, i. e. to remain a self-governing peo¬ 
ple, it was essential that sovereignty should be forever in them. All 
the fathers considered — as Wilson, of Pennsylvania, expressed it — 
that “ the supreme, absolute, and uncontrollable power is in the peo¬ 
ple before they make a constitution, and remains in them after it is 
made.” 

Now this is the absolutely essential idea of a republican polity. 
Hence, no such question was, or could have been, submitted to the 
people of South Carolina — or even thought of — as whether or not 
“ the powers of government ” or “ political sovereignty ” should be irrev¬ 
ocably alienated by them 3 Ceding, surrendering, relinquishing, or 
alienating “powers,” by “irrevocable conveyances,” never entered the 
public mind; but the question in each of the then existent commu¬ 
nities of people virtually was : “ Shall we, the state, delegate these 
powers [not to govern us, as a commonwealth, for we govern , but] to 
govern our subjects'? Those who are to exercise these powers will be 
our citizens, elected by us. They will be our representatives, dele¬ 
gates, agents, trustees, and subjects, exercising for us the authority 
we delegate — no more ! ” 

“Delegate,” then, is the only Correct Word. — All the other 
words to be found in the common parlance, political essays, debates, 
state papers, etc., of that day, must, when they refer to the vesting 
of powers in a government, be limited in meaning to “delegate” 
because, 1st, in the nature of things, the people are the real govern¬ 
ment, the so-called government being only an agency, and possessing 
only delegated power; 2d, the constitution exhibits only a created 
government and derivative authority. Article I. says that “ all legis¬ 
lative powers herein granted shall be vested in a congress,” etc.; Article 
II. that “ the executive power shall be vested in a president,” etc.; 
Article III. that “the judicial power of the united states shall be 
vested in one supreme court,” etc.; and Amendment X. that “the 
powers not delegated to the united states by this constitution, . . . 
are reserved,” etc. All the powers of the constitution, then, are 
“ delegated .” 

This word also refers back to, defines, and absolutely controls the 
meaning of “relinquished” and “vested,” used in the ordinance of 
South Carolina, in the declaration that “ the states ’ “ retain every 
power not expressly relinquished by them, and vested in the general 
government.” 

This view is more evident, from the fact that all the other states 
that expressed themselves on the subject, used the precise word 
“ delegated .” [See the ratifications of Mass., N. H., N. Y., R. I., 


192 


FALLACIOUS EXPOSITION. 


Ya., and N. C., I. Ell. Deb. 322, 325, 327, 334; III. Ibid. 659 ; IY. 
Ibid. 244.] 

The views of Messrs. Everett and Curtis, then, are untrue in fact, 
and unfounded in reason and political philosophy. There is no “deed 
absolute on its face,” no “ irrevocable conveyance ” of “ powers of 
government ” or “ political sovereignty; ” but there is an ordinance, 
by “ a public body, for the regulation of a subject which, in its nature , 
remains under the regulation of that body, to operate till othei'wise pro¬ 
vided for .” And no such “ deeds,” “ cessions,” “ conveyances,” or 
“ alienations,” as they allege, can be found in American history; and 
it is the reverse of true that the American people have been accus¬ 
tomed to treat such “ political grants ” as “ irrevocable conveyances.” 
The very “ political grants,” which he describes as “ powers of gov¬ 
ernment,” and misdescribes as “ political sovereignty,” are in all the 
state constitutions, and in the federal one, too, and are entirely sub¬ 
ject to revocation and amendment, no matter whether it is provided 
for or not; and so in the case of all municipal corporations. The peo¬ 
ple, as organized, are supreme, and have unlimited power of amend¬ 
ment or repeal. 

As these writers based their dogma of an “ irrevocable cession ” of 
“ political sovereignty ” on statements proved to be untrue, and argu¬ 
ments shown to be fallacious, we may consider their signal failure as 
a concession that the ordinances are repealable, and the powers revo¬ 
cable, as is undoubtedly the case. 

There are several other ideas of this remarkable letter of Mr. Curtis, 
which would justify more than the mere mention I must content my¬ 
self with. 

1st. If he proves an “ irrevocable conveyance ” of “ political sove¬ 
reignty,” he proves that the republican form of government here, is at 
an end, i. e. that the people have self-government no longer! 

2d. He confounds pow T ers of government with “political sove¬ 
reignty,” though the latter is the right to exercise or delegate the 
former. Any part or the whole of such “ powers ” may be delegated 
without diminishing sovereignty in the least. 1 

1 It is almost universal to consider sovereignty as made up of, or as divisible into, 
the powers of government, and subject to delegation or reservation. Even while con¬ 
tending for the absolute sovereignty of the states, Mr. A. H. Stephens seems to argue 
that such sovereignty was impliedly reserved, in the original compact, among a “ mass 
of residuary rights;” but that, to quiet apprehension, “this reservation was soon after 
put in the constitution, amongst other amendments, in plain and unequivocal language.” 
The “ reservation ” he speaks of, is that of “ the powers not delegated,” — in the Tenth 
Amendment. [See I. War between the States, 489.] He seems to forget that it is sove¬ 
reignty, which acts, in delegating and reserving powers, and that its own existence or 
transfer cannot be involved. The truth is, the constitution neither mentions nor even 
remotely alludes to sovereignty. 


ADEOIT SUBSTITUTIONS. 


193 


3d. He announces that “ political sovereignty” is subject to aliena¬ 
tion, like property. If so, why is it not subject to bargain and sale ? 
Massachusetts, enriched by tariffs, bounties, etc., may buy out the 
stock at Washington, including what the people of South Carolina 
alienated, and Mr. Curtis may mount the viceregal throne of that 
province. Nothing at Washington is extra commercium. Or suppose, 
firstly, South Carolina becomes bankrupt; secondly, makes a cessio 
bonorum; thirdly, Massachusetts becomes the highest bidder; and, 
fourthly, Viceroy Curtis! These political teachers often advance 
startling ideas, — and w r ork up to them ! 

4th. He leaves us to conjecture his grantee of the “irrevocable 
cession,” by “absolute conveyance,” of “political sovereignty.” It 
cannot be the nation, for that is his grantor nor “ the united states,” 
for he denies that they are sovereigns. His grantee is “ the govern¬ 
ment,” to which he, like the Philadelphia platform, ascribes “ abso¬ 
lute supremacy ” and the allegiance of the states. But the government 
cannot be the grantee, because, 1st, the alleged grants are delegations, 
and the pretended grantee is a trustee and agent, using the powers for 
a principal or principals; 2d, the instrument containing the grants 
was “ordained” in 1788, while the government was not elected and 
organized till the spring of 1789. How could it be a grantee 1 3d, the 
government could not be a party to the act creating it; 4th, it is 
not the government, but the independent branches thereof, that the 
grants or delegations are confided to; e. g. “All legislative powers 
herein granted shall be vested in a congress,” etc. [See also the 
executive and judicial delegations.] It is, then, not the “govern¬ 
ment” [with a big G] that is “grantee.” The said government, in¬ 
stead of being a unit, with oneness of mind and will, is three units, 
each distinct, coequal, and absolutely independent, and each with final 
and exclusive will, as to its own duty. 

5th. All the officials are citizens and subjects of the several states, 
acting temporarily in a representative capacity. How could they, 
either as individuals or a corporation, have the technical capacity of 
grantee 1 Moreover, the grantee of “ political sovereignty ” must be 
sovereign; and yet Webster says “sovereignty in government” “is 
unknown in North America.” So Mr. Curtis is contradicted by his 
hero ! 

6th. And, finally, Amendment X. affords absolute proof that the 
only possible grantee was “the united states. “The powers not 
delegated to the united states by the constitution . . . are reserved, etc. 
It is, then, the association of states that is the grantee, and the govern¬ 
ment, personally composed of subjects of states, is the association’s 
agency. Nothing at all is alienated to the government. 

13 


194 


FALLACIOUS EXPOSITION. 


We see, then, that “grantee” has no other sense than delegatee, 
trustee, and agent. No instrument has “operated to pass some¬ 
thing.” The states are associated as equals; they are not changed 
by their act of association, in name, people, geography, organism, or 
authority; they are “ the united states,” and are themselves the real 
government, the so-called governments being their created agencies, 
acting solely with their life and power. All American histor} 7 " sup¬ 
ports this view. 

The People never part with Self-rule. — I now gladly contrast 
with the foregoing errors, the wisdom of the “best minds” of the 
golden age of Massachusetts, as expressed by “ the celebrated Chief 
Justice Parsons,” in her ratifying convention, with the assent of Han¬ 
cock, Adams, Bowdoin, Ames, King, Gore, and others. The new po¬ 
litical system, said he, is “ a government, to be administered for the 
common good, by the servants of the people, vested with delegated 
powers, by popular elections, at stated periods. The federal constitu¬ 
tion establishes a government of this description, and in this case 
the people divest themselves of nothing. The government and 
powers which the congress can administer, are the mere result of a 
compact,” etc. 

While dealing with this most vital subject, it is perhaps best to 
group a few of the many high authorities at hand, to emphasize the 
assertion that the people made no conveyance of power whatever , except 
in the sense of trusts or delegations, to their own “ agents,” “ ser¬ 
vants,” or “ substitutes,” as all the fathers and all the states consid¬ 
ered (and actually called) these grantees. 

“ The people are the fountain of all power. They must, however, 
delegate it to agents.” [Pendleton.] “ The federal and state govern¬ 
ments are, in fact but different agents and trustees of the people.” 
[Madison.] “The people are the masters who gave it, and of whom 
the servants hold it.” [Marshall.] “ Those who are entrusted with 
the administration, are no more than the creatures of the people.” 
[Washington.] “By their servants they govern. They do not re¬ 
nounce their power; they do not sacrifice their rights; they become 
the true sovereigns of the country, when they delegate that power, 
which they cannot use themselves, to their trustees.” [Fisher Ames.] 
Hamilton, Livingston, Wilson, Iredell, Pinckney, and many other most 
eminent fathers could be quoted to the same effect, — all of them agree¬ 
ing, that THE PEOPLE DIVEST THEMSELVES OF NOTHING, but do all such 
acts, as establishing governmental agencies and administering them, as 
societies, each a republic, with inherent, inalienable, and unlimited 
right of self-government. The federal convention unanimously de¬ 
clared, “The style of this government shall be the united states'* This 


ADROIT SUBSTITUTIONS. 


195 


has no other meaning than that these societies of people “divested them¬ 
selves of nothing ,” but intended, under the new system, to continue 
the function of governing themselves. Function, I say, for society 
naturally and functionally governs itself, — doing, under its Maker, 
what it was made for, just as man feels, thinks, acts, walks, talks, eats, 
digests, etc., in governing and preserving himself according to his 
being. 

Yes, common sense shows that a republican people must “divest 
themselves of nothing/’ if they preserve liberty and self-government; 
and that the powers they, with other societies, put in government 
must be “the mere result of a compact;” and must be powers dele¬ 
gated or entrusted to an agency. 

I can wind up this chapter with nothing more apposite, instructive, 
and conclusive, than an extract from his “ Examination of the Leading 
Principles of the Federal Constitution,” by Noah Webster,—an ex¬ 
pounder whom the American people should better know. The italics 
are his: “ The states, in their separate capacity, cannot provide for 
the common defence; nay, in case of a civil war, a state cannot secure 
its own existence. The only question, therefore, is whether it is 
necessary to unite, and provide for our common defence and general 
welfare.” If yes, continues he, there is need of “constituting a 
power over the whole united states, adequate to these general pur¬ 
poses.” 

“ The states, by granting such power, do not throw it out of their 
own hands, — they only throw each its proportion into a common 
stock, — they merely combine the powers of the several states into 
one point, where they must be collected, before they can be exerted. 
But the powers are still in their own hands, and cannot be alienated, 
till they create a body independent of themselves, with a force at its 
command, superior to the whole yeomanry of the country! ” [See 
New Haven Gazette, Nov. 29, 1787.] 


CHAPTER VII. 


MISSTATING HISTORY AND RECORDS. 

INTERPRETATION No. 11. — Misstating the Views and Acts of 

the Convention. 

J UST as they tear the “ We-the-people ” shred from the preamble, and 
show by it that the constitution is not a union of states, but is 
an association of the people thereof to form a nation, of which the 
states are mere provincial parts, these expounders pick out of the 
record of the convention of 1787, and of the speeches and writings 
of the fathers, little passages, which, torn from the contexts, support 
their theory. In this chapter I shall confine myself principally to 
exposing the misstatements or mistakes made in reference to the 
action and plan of the “convention of states” of 1787. I will begin 
by reiterating briefly — 

The Reasons for making a New Federation. —The first “federal 
government of these states ” consisted of a mere congress, vested with 
nearly the same legislative powers as the present one. But, as it had 
no coercive authority to enforce its enactments, compliance was virtu¬ 
ally at the option of the states. Of course such a governmental con¬ 
trivance was weak and inefficient; and, when peace supervened, and 
“union or subjugation ” ceased to be the momentous alternative, each 
state began to exercise her free will as to commerce, currency, debt, 
contributions for defence, etc., and other matters of common interest. 
The tendency of things was towards disunion and weakness, if not 
civil or internecine strife. Hence, the wise and patriotic fathers coun¬ 
selled their states, and finally induced them to “ form a more perfect 
union,” and “ a more efficient federal government,” giving to this the 
legislative powers of the first, with a few additional ones, as well as 
commensurate executive and judicial authority,—thus making for fed¬ 
eral matters the complete government that each state enjoyed, and 
giving to it the same authority and means of enforcing its powers on 
individual citizens that the state governments possessed; so that the 
said agencies, state and federal, became a great “ political machine,” 
owned and worked by the states, through their elected agents,—these 


MISSTATING HISTORY AND RECORDS. 


197 


being their own citizens and subjects. [See Part II., Ch. I.] The said 
states were themselves to compose whatever nation there w T as to be, 
and it was they alone that authorized legal coercion of their citizens 
by their federal agency; but they most positively and carefully with¬ 
held jurisdiction and coercive power over themselves. 

The history and records of the country contain no word of testi¬ 
mony against the above; but the perverters have, by industrious cull¬ 
ing, gathered “ line upon line, and precept upon precept, here a little 
and there a little/’ until they have produced a sort of “ mosaic dis¬ 
pensation ” of centralism, from which arises that monster, the corpo¬ 
rate despot of Washington! 

The Misstatement to be refuted. — Not long after the opening 
of the convention, to wit, on May 30, 1787, it was resolved that “ a 
national government ought to be established, consisting of a supreme legis¬ 
lative, executive, and judiciary .” [I. Ell. Deb. 151.] Daniel Webster 

quotes this, and asserts that “it completely negatives all idea of 
league, compact, and confederation. Terms could not be chosen,” 
continues he, “ more fit to express an intention to establish a national 
government, and to banish forever all notion of a compact between 
sovereign states.” [Speech of 1833.] And Judge Story comments 
in the same style. He quotes the above resolution, and says: “ It 
plainly shows that it was a national government, and not a compact, 
which they were about to establish.” He further remarks that “ the 
inefficiency of the old confederation forced the states to surrender 
the league then existing, and to establish a national constitution.” 
[I. Story, Com. 237.] 

The two leading—if not the only—ideas Story and Webster aim 
at in this quotation are involved in “ national ” and “ supreme.” They 
use the above resolution to prove, 1st. That a consolidated nation was 
formed; 2d. That the government of it is a sovereignty. Taught 
by them, Lincoln said the states are mere counties, with no rights but 
those reserved to them by the nation in the constitution. The dogma 
of the “absolute supremacy” of “the government,” and the alle¬ 
giance of the states thereto, promulgated by the Philadelphia con¬ 
vention of 1866, sprung from the same source. All these heresies are 
comprehended in Webster’s assertion that, so far as the constitution 
goes, “ so far state sovereignty is effectually controlled.” 

Both of the above ideas of Story and Webster are utterly baseless; 
and the use of the said resolution to prove them is wrongful. The 
resolution was adopted without much notice, and with no debate, and 
was referred to the committee of the whole, with other propositions, as 
matters for future consideration, [V. Ell. Deb. 134,] and in the three 
and a half months of subsequent deliberation, the direct contrary of 


198 


FALLACIOUS EXPOSITION. 


what the perverters predicate of-this resolution was contended for, 
and finally prevailed, as I will now proceed to show historically. [The 
reading of Appendix C, with this chapter, is important.] 

Two or three plans for a federal constitution were before the com¬ 
mittee of the whole convention. Edmund Randolph’s plan opened as 
follows : 

“ 1. Resolved, That the articles of confederation ought to be so 
corrected and enlarged as to accomplish the objects proposed by their 
institution, namely : common defence, security of liberty, and general 
welfare.” On May 30th, at the suggestion of G. Morris, Randolph 
moved the postponement of this, and the consideration of the three 
following : “ 1st. That a union of states, merely federal, will not accom¬ 
plish the objects proposed. . . . 2d. That no treaty or treaties among 
the w T hole or part of the states, as individual sovereignties, would be 
sufficient. 3d. That a national government ought to be established, 
consisting of a supreme legislative, executive, and judiciary.” Several 
members at once expressed the doubt “whether the act of Congress 
recommending the convention, or the commissions of the deputies 
to it, would authorize a discussion of a system founded on different 
principles from the federal constitution V’ [V. Ell. Deb. 133.] Where¬ 
upon, the first two of the above resolutions were dropped , and not heard 
of afterwards; and the third became the first of nineteen resolutions, 
which the convention adopted for consideration [Ibid. 189], and in 
which the prospective constitution is repeatedly styled — the “ articles 
of union.” [Ibid. 190.] 

How the States instructed their Deputies. — Before going fur¬ 
ther, it is well to note the instructions in the commissions of the 
deputies, and “ the act of congress ” referred to. Massachusetts, in 
commissioning hers, said, “ the sole and express purpose ” was to 
make such “ alterations and provisions,” as will “ render the federal 
constitution adequate to the exigencies of government, and preserva¬ 
tion of the union.” [I. Ell. Deb. 126.] “To revise the federal con¬ 
stitution,” was the phase of several; and “ to render the constitution 
of the federal government adequate to the exigencies of the union,” 
was the language of others. [See I. Ell. Deb. 126-139, for the 
language of all.] And the act of the congress of the states upon the 
subject, expresses the same idea, in nearly the same words. [Ibid. 
119-20.] I will observe, en passant , that these extracts enable us to 
appreciate another of the errors that so abound in some of Mr. Web¬ 
ster’s efforts, viz. : that the instrument of 1778 was called “articles oi 
confederation,” while the one of 1788 “ called itself a constitution,” i. e. 
“ a government proper,” and that therefore the two systems were essen¬ 
tially different. Without insisting that “there is nothing in a name,” 


MISSTATING HISTORY AND RECORDS. 


199 


I merely state the fact, that both states and fathers habitually called 
each instrument “ the federal constitution,” and “ the constitution of 
the federal government.” In reference to the instructions, the pre¬ 
sumption is, that the deputies obeyed them. We shall see that they 
did so. [See Appendix C, No. 1.] 

It appears, then, that the states instructed their deputies to amend 
the confederation; that the convention tacitly conceded that “the 
commissions of the deputies,” and “ the act of congress,” only warranted 
the making of a federal system; and that it formally declined to say 
that “ a union of states merely federal ” made by a treaty among the 
states as sovereignties , would not accomplish the object in view. And 
we shall see that, so far from attempting the nationalization of the 
states, the constant aim of the fathers was to induce them to federalize 
themselves, and remain intact as sovereigns; and that in the course 
of the deliberations, every “ national ” word and idea was gradually 
eliminated from the system. But before going further, it must be 
shown that Story and Webster gain their whole basis by misquota¬ 
tion ! 

The Expounders’ Style of Quoting. — The very resolutions, the 
first of which they quote as the basis of their theory, prove the entire 
falsity of it. To show this, let us put the first, and the last two in 
juxtaposition, and refer to the others: “1. Resolved, that it is the 
opinion of this committee, that the national government ought to be 
established, consisting of a supreme legislative, executive, and judiciary. 

. . . 18. Resolved, that the legislative, executive, and judiciary 
powers, within the states, ought to be bound by oath to support the 
articles of union. 19. Resolved, that the amendments which shall be 
offered to the confederation, by the convention, ought, at a proper 
time or times, after the approbation of congress, to be submitted to an 
assembly or assemblies of representatives,” etc. [I. Ell. Deb. 181-2 ; 
V. Ibid. 189-90.] Here we see that not only was the convention 
instructed, as heretofore shown, to amend the articles of confederation, 
but that such “ national government ” as the convention aimed at, 
was to be provided for,' in “articles of union ” of states; and that the 
DESIDERATUM WAS TO BE ATTAINED BY MAKING “ AMENDMENTS ” “ TO THE 
CONFEDERATION.” 

Now these expounders, suppressing all the others, put the first reso¬ 
lution before the people, to make them believe that the convention 
“ completely negatived all idea of . . . confederation.” Is not this 
garbling the sacred records 1 In like spirit, they point to the Ran¬ 
dolph, or Virginia plan, that these resolutions are a part of, as national, 
and to the Patterson, or New Jersey plan, as federal, and represent 
that the former prevailed, when, in reality, a pure league, federation, 


200 


FALLACIOUS EXPOSITION. 


or union of states, was formed. The two plans, as originally intro¬ 
duced, are in I. Elliott’s Debates, pp. 143, 175. They bear but little 
resemblance to the plan finally adopted. Each of them contemplated 
for its basis the “ all-power ” of the states. 

The “National” Idea repudiated. — And, consistently with the 
above, on the very first occasion of considering this matter, the follow¬ 
ing record was made : “ Wednesday, June 20th — The first resolution 
of the report of the committee of the whole being before the house, 
Mr. Ellsworth, seconded by Mr. Gorham, moves to alter it so as to 
run — ‘ that the government of the united states ought to consist of 
a supreme legislative, executive, and judiciary.’ This alteration, 
he said, would drop the word ‘ national,’ and retain the proper title, 

‘ the united states.’ . . . He wished also the plan to go forth as an 
amendment of the articles of confederation. . . . The motion of Mr. 
Ellsworth was acquiesced in, nem. con. The second resolution — ‘ that 
the national legislature ought to consist of two branches,’ being taken 
up — the w r ord ‘ national ’ struck out, as of course.” [Y. Ell. Deb. 
214.] Nay, more, while the word “national” was used twenty-six 
times in the aforesaid resolutions, it was, in obedience to the above- 
indicated will of the convention, invariably exchanged for “ united 
states,” and “ union of states; ” so that finally neither the word 
“ national ” nor the idea of it was left in the federal plan. 

More Anti-National Facts. — The expunction of “ national ” is 
merely the first of a series of great facts, that decisively contradict 
and refute Story and Webster, as well as their feebler followers. The 
2d is, that on the 18th of August, 1787, the nationalists proposed to 
invest the general government with powers, to grant charters of incor¬ 
poration, to establish a university and seminaries, to promote litera¬ 
ture, science, and arts, to encourage useful knowledge, and discoveries, 
by premiums, etc., to establish public institutions, rewards, and im¬ 
munities, for the promotion of agriculture, commerce and manufac¬ 
tures, etc. These, and others proposed, were suited to a national or 
state legislature, but not a federal one ; and the convention declined 
to recommend transferring them from the state governments, where 
they already were. 1 [Y. Ell. Deb. 440, 445, 446.] 

The 3d great anti-national fact is, that a power to revise or negative 
state laws was repeatedly proposed, and as often overwhelmingly de¬ 
feated. [Ibid. 174, 180, 321-2, 468-9.] On the occasion of the last 

1 If all powers, except those expressly delegated, were reserved by the states, the 
power to create the United States Bank, or Jay Cooke’s National Insurance Company, to 
say nothing of other corporations, must have been reserved by the states, for no such 
power is expressed in the constitution. And as this power was proposed, discussed, and 
actually excluded from the constitution, there can be no doubt of the above corporate 
bodies being the offspring of usurpation by men who had sworn to refrain from it! 


MISSTATING HISTORY AND RECORDS. 


201 


proposal, John Rutledge indignantly exclaimed : “ If nothing else, this 
alone would damn, and ought to damn, the constitution; ” and the 
convention, by vote, refused even to let it go to a committee, and the 
proposition was withdrawn. [Ibid. 468-9. See also Appendix C, 
No. 3.] 

The 4th great anti-national fact is the all-important one, that the 
convention absolutely declined to give the general government even 
the least coercive power over states, and all the fathers spurned the 
idea, both in the federal and state conventions, as inconsistent with 
the plan, and tantamount to giving the power to wage war against the 
states. Mr. Madison said the idea was “ visionary and fallacious; ” 
Mr. Hamilton that it was “ the maddest project ever devised ; ” and 
Ellsworth, Randolph, and others, spoke of it as preposterous, in the 
nature of war, and out of the question. This subject will be dealt with 
hereafter. Now what sort of a national government is that, which has 
no coercive power over the constituents of the nation — no power to 
hold them together, and no power to negative, or even revise, state laws 1 
How could Mr. Webster permit himself to say that the constitution 
“ effectually controlled” “state sovereignty” 1 ? And we must note 
here, that the states made three amendments to forefend this very 
danger, — the ninth and tenth to prevent the implying of powers for 
state control, and the eleventh to guard against even judicial coercion 
of states. 

The Real Preamble. — The 5th great anti-national fact is one that 
Dane, Story, Webster, and Curtis must have deemed too important for 
allusion to, let alone comment on ; and well they might, for it crushes 
them, and their little imaginary foothold in the constitution. The 
preamble and first article, unanimously adopted by the convention, 
for the proposed compact, were as follows: “We, the people of the 
states of New Hampshire, Massachusetts, Rhode Island, Connecticut, 
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carolina, and Georgia, do ordain, declare, and 
establish the following constitution for the government of ourselves 
and our posterity. [Article I.] The style of the government shall be 
‘the united states of America/” etc. [V. Ell. Deb. 376, 382.] 

But the whole instrument, after being agreed upon and adopted, 
article by article, was placed in the hands of a committee of revision, 
who reported it back considerably improved in mere form. As to the 
preamble, the generalization, “We, the people of the united states ,* 
was substituted, as equivalent to the specification of the states. 
This was proper, because the constitution was to take effect when 
ratified by nine states, and it might, if the states were named, result 
that some would be designated, though not in the union. It should 


202 


FALLACIOUS EXPOSITION. 


further be explained, that the phrase “We, the people ” was used in 
this constitution, because the previous pact had been ratified, or ac¬ 
ceded to, by the state governments — the mere creatures of the 
people; whereas, in this case, it was intended to connect the federal 
government with, and base it directly upon, the very source of power 
— the sovereignty itself; making thirteen sovereignties, as Madison 
and all the fathers understood, the constitutors of the new pact — the 
constituents or principals of the new agency. The people of the 
states, being obliged to act as organizations, and according to the law 
of their political nature, gave separate assents, and hence the new 
constitution was not less a compact than the old one, though the 
powers vested by it in the government created, were more extensive. 
And the convention accepted the revised constitution as their work, 
and never reconsidered their solemn and unanimous approval of the 
phrase — “We, the people of the states.” Dane and Story should 
have known this, as well as the independent ratifications of the states, 
when the former penned, and the latter quoted approvingly, the 
following, in reference to the preamble : “They properly said, ‘We, 
the people of the united states ’ do ordain and establish; and not 
‘ We, the people of each state.’ ” 

“ The style of the government shall be the united states of America .” 
Here we see that the real government is the states themselves, the 
“ general government ” being “ the government of [i. e. belonging to] 
the united states,” and a mere agency. These states were republics, 
and they intended to keep, and not cede, political sovereignty. Their 
citizens only, and not themselves, were to be the subjects of govern¬ 
ing power. This is what Madison meant, in the Virginia ratifying 
convention, by the phrase “ a government of a federal nature, consist¬ 
ing of many coequal sovereignties; ” and what Parsons meant, in the 
Massachusetts ratifying convention, by saying, “ the people divest them¬ 
selves of nothing” when they delegate powers of government! 

The 6th great anti-national fact is, that the entire convention 
thought they had formed a federal plan, because in their unanimous 
letter, reporting the constitution to congress, they spoke of it as “ the 
federal government of these states; ” and in the compact itself, they 
repeatedly wrote the phrase — “the united states,” and “union of 
states.” And it is a most potent fact, that Gouverneur Morris, one 
of the chief consolidationists, and the chairman of the committee on 
revision, whose pen made the change referred to above, declared, j^ears 
afterwards, that “ the constitution is a compact between political societies , 
. . . each enjoying sovereign power .” [III. Life of G. Morris, 193.] 

Anti-national Contemporaneous Exposition. — But, perhaps, the 
most important fact in the history of this great subject, is the follow- 


MISSTATING HISTORY AND RECORDS. 


203 


ing, that, after the work was finished, all the leading fathers, in the 
state conventions, through the press, and before the people, character¬ 
ized the constitution as a compact , and the system as a federation of 
sovereign states, as is already shown in Part I., Chapter VII. 

It is quite certain, then, that the original states, and the fathers, 
intended to avoid the very thing these expounders predicated of the 
constitution, viz. — a consolidated nation , or a sovereign national gov¬ 
ernment ; and to make the very thing these men deny, viz. — a federal 
union of states. 

Hamilton, all of whose views and wishes were in favor of consolida¬ 
tion, was forced to admit that his plan and idea had been rejected 
[V. Ell. Deb. 556], and that the system was “a confederacy of 
states.” [II. Ell. Deb. 353.] He also said While the constitution 
continues to be read, and its principles known, the states must, by 
every rational man, be considered as essential component parts of the 
‘ union.’ ” [Ibid. 304.] 


CHAPTEE VIII. 


DANIEL WEBSTER’S MASTER-PIECE OF CRITICISM. 

INTERPRETATION No. 12. — “ Constitutional Compact.” 

I N 1833, John.C. Calhoun submitted a series of resolutions to the 
United States Senate, the first of which declared, “ that the people 
of the several states . . . are united as parties to a constitutional 
compact, to which the people of each state acceded as a separate 
sovereign community.” 

In his celebrated reply, Daniel Webster severely inveighed against 
Mr. C.’s use of the words “ compact” and “ accede,” and charged him 
with “ abandoning the use of constitutional language for a new vocab¬ 
ulary.” “ If,” said Mr. W., “ nothing was done but acceding to a 
compact, nothing would seem necessary, in order to break it up, but 
to secede from the same compact. . . . This is the reason why it is 
necessary to give new names to things ; to speak of the constitution, 
not as a constitution, but as a compact; and of the ratifications by 
the people, not as ratifications, but as acts of accession.” And he 
repeatedly made the assertion that “ there is no language in the whole 
constitution, applicable to a confederation of states.” 

These utterances involve the absurd assumption that all language 
used, in devising, discussing, and establishing the constitution, by the 
fathers and the states, which they did not also use in the instrument, 
is unconstitutional, as well as improper for resolutions and arguments 
concerning it. 

“ Compact ” and “ accede ” are correct. — I shall now proceed to 
show that Mr. C’s language was precisely that which the fathers and the 
states habitually used, throughout the great series of discussions 
and acts attending the establishment of the federal system. Nay, 
more, I shall show before concluding, that Mr. Calhoun's resolution ex¬ 
pressed the most studied and elaborate views of Mr. Webster himself! 

In the establishment of the constitution, the acts by which the con¬ 
ventions expressed the wills of their respective states were described 
by a variety of words and phrases, all of which embodied the idea of a 
ratification of the instrument by political bodies. Little Delaware, in 


WEBSTER’S MASTER-PIECE OE CRITICISM. 


205 


her ordinance, hitched to “ the constitution,” a tandem of four, as 
follows : “ approve of, assent to, ratify, and confirm the said constitu¬ 
tion.” Besides these, the states and the fathers used, for the pur¬ 
pose of expressing the same act, “join,” “unite,” “ accep#,” “accede 
to,” “ affirm,” “ sanction,” “ agree to,” “ adopt,” etc. Of these, the 
word “ ratify ” was used in all the ordinances, probably because it was 
the technical word usually employed by sovereigns to express their 
sanction of treaties, alliances, leagues, federations, and other com- 
pacts. And it seems to be the word best fitted to signify a common¬ 
wealth’s adoption of a federal pact, while it does not even hint at the 
assent or approval of mere voting persons. The theory of the expound¬ 
ers really is, that our people, in provinces, counties, or departments, 
adopted the “ national constitution,” just as the French elected the 
President for life, the Emperor, and, more recently, the 'plebiscite 
concerning a responsible ministry. They seem, however, to perceive 
but dimly that their theory implies a like despotic authority here, 
which permits the expression, and provides for the ascertainment of 
the popular will — or rather wish. 

Any fair arguer would have known that all the above expressions 
conveyed the same idea, so far as they referred to the giving of exist¬ 
ence and authority to the new system. It was plainly impossible for 
one who knew the facts, not to see that the states, in convention, 
made a proposal to each state; each assented to and ratified it; 
thereby it became the “ federal constitution,” and they became “ the 
united states.” 

But Mr. Webster was only able to attack the aforesaid resolution 
by sophistry; so he “ criticised ” the above words, seeming not to 
know that by “ accede ” Mr. Calhoun precisely meant ratify, while 
by “ compact ” he precisely meant constitution; and that the char¬ 
acter and legal effect of the instrument depended, not upon what 
Mr. Calhoun or anybody else called it, or, indeed, what it called itself, 
but upon what it actually was. 

He ignored Constitutional History, or he would not have char¬ 
acterized the above words as “ unconstitutional language,” for the 
fathers and the states habitually used compact as meaning constitu¬ 
tion, and accede as ratify, as will now be shown. [Italics mine.] 

Hamilton wrote to Madison, June 8, 1788 : “God grant that Vir¬ 
ginia may acceded He wrote to Chipman, of Vermont, July 22, 1788: 
“ The accession of Vermont to the confederacy is of great importance.” 
And in a subsequent letter he speaks of Vermont’s “ accession to the 
union,” and her becoming a member of the confederacy . In Article 85 
of the Federalist, he characterizes the association of states as a con¬ 
federacy ; calls the constitution a compact; and says that “ thirteen 


206 


FALLACIOUS EXPOSITION. 


independent states ” are 11 the parties to the compact.” In the ratifying 
convention of New York, he says the new system is “ a confederacy of 
states ! ” [II. Ell. Deb. 353.] 

Madison, in the Virginia ratifying convention, characterized the 
new plan as “a government of a federal nature , consisting of many co¬ 
equal sovereignties .” This is his key-note, and many passages contain¬ 
ing the words “compact” and “accession” could be produced. One 
will suffice: “Suppose,” said he, “eight states should ratify, and 
Virginia should propose certain alterations as the previous condition 
of her accession .” [III. Ell. Deb. 618.] 

John Jay wrote to Washington in June, 1788: “Th q accession of 
New Hampshire does good, and that of Virginia would do more.” So 
we see that all “ the writers of the Federalist,” not only recognized the 
states, instead of the nation, as the actors in establishing the consti¬ 
tution, but they, like Calhoun, “ abandoned the use of constitutional 
language for a new vocabulary.” 

Washington, in a letter to David Stuart, of Oct. 17, 1787, spoke 
of the new constitution as a “ compact or treaty , v and said that among 
the states, “ there must be reciprocity or no union.” 

To Bushrod Washington, he writes, Nov. 10, 1787: “Is it best 
for the states to unite ? ... If the union of the whole is a desirable 
object, the component parts must yield a little, in order to accomplish 
it.” He then asks what the opponents in Virginia would do, “ if nine 
other states should accede to the constitution.” 

Writing to Madison, Dec. 7, 1787, he speaks of “ the states acceding 
to the federal government,” etc. To the same, January 10, 1788, he 
says : “ Nine states will have acceded to it.” 

To Gen. Knox, June 17, 1788, he speaks of “the accession of South 
Carolina,” and hopes “that the states which may be disposed to make 
a secession , will think often and seriously on the consequences.” 

To Marquis de Lafayette, June 17, 1788, he speaks of “the 
accession of Maryland to the proposed government,” and says, “ the 
accession of one state more, will complete the number needed to estab¬ 
lish it.” 

To Gen. Pinckney he wrote on June 28, 1788, that “ New Hamp¬ 
shire had, on the 21st instant, acceded to the new confederacy , by a 
majority [in her convention] of eleven voices.” To John Jay, July 
18, 1788, he speaks of “the accession of ten states ; ” and July 20, 
1788, to Sir Edward Newenham, of the states “having formed a con¬ 
federated government.” 

Writing to Gouverneur Morris, in 1789, he hopes “the non-acceding 
states will very soon become members of the union” 

And on July 1, 1790, he writes to Count de Segur: “ The union of 


WEBSTER’S MASTER-PIECE OF CRITICISM. 


207 


states is now complete under the new government, by the late accession 
of Rhode Island to the constitution.” [All these extracts are to be 
found in Vol. IX., Writings of Washington.] 

The following extract from a letter from Washington to the Earl of 
Buchan, dated April 22, 1793, — first published in the London Auto¬ 
graphic Mirror, in 1$65, — shows his federal idea or conception at that 
date to be unchanged : “ I send you the plan of a new city about the 
centre of the union of these states” 

Franklin could be quoted extensively to the same effect. A sin¬ 
gle quotation will suffice. He wrote on Nov. 5, 1789 : “Our new 
constitution is now established with eleven states , and the accession of a 
twelfth is soon expected.” 

Governor Randolph, Judge Parsons, Chancellor Livingston, Samuel 
Adams, James Wilson, and many others, could be quoted to the same 
effect. A single expression of the first named, in the Virginia conven¬ 
tion, will suffice : “ Were I convinced that the accession of eight states 
did not render our accession also necessary to preserve the union, I 
would not accede to it, till it should be previously amended.” [III. 
Ell. Deb. 67.] 

Neither Disputant knew the Facts of the Case. — Mr. Webster 
and Mr. Calhoun seem to have been about equally well-informed in 
constitutional history. In the rejoinder of the former to the latter, 
in 1833, he said : “The gentleman also attempts to find an authority 
for his use of the word 1 accede.’ ” He then went on to admit that Gen. 
Washington used it, as did his biographer. But, said he, it was in 
regard to North Carolina’s ratification; as the old union was broken 
up, and the new one already formed, “ there was propriety, perhaps, 
in calling her adoption an accession.” 

The above extracts indicate the effective reply Mr. C. could have 
made. Besides beating his Titanic adversary in argument, and con¬ 
vincing the learned, he might have crushed him with mountains, and 
convinced the world ! Mr. Webster’s arguments were made mainly 
of assertions of fact, all of which could, then and there, have been 
proved to be unfounded ! 

In fine, all the fathers preferred the “new vocabulary,” and were 
quite ignorant of the alleged fact, that there was “ no language in the 
whole constitution applicable to a confederation of states.” 

Mr. Webster’s Views late in Life. — As Mr. Webster was an 
American politician, like most of the class, he could act the pendulum. 
Having done ample justice to his consolidation swing, I will show his 
federal oscillations. [The italics are my own.] 

He wrote to Col. William Hickey, Dec. 11, 1850, that “the con¬ 
stitution is the bond, and the only bond of the union of these states. It 


208 


FALLACIOUS EXPOSITION. 


is all that gives us a national character.” [“The Constitution, p. xxii.] 
This expresses precisely the idea of Calhoun, and is the exact opposite 
of Mr. Webster’s assertion in 1833, that the constitution is the union 
of the people, and not a union of states ! 

He wrote to Mark Cooper, of Georgia, in 1851 : “The states are 
united, confederated , not ‘ chaos-like, together crushed and bruised.’ ” 

“ The states are united, confederated.” All the fathers, and the 
constitution, speak of “ the union of states ” — “ the united states.” 
These expressions, with their habitual use of federal' (and its cognates 
from the same root, foedus) make it impossible that they should have 
intended anything else by the constitution, than a league “ between 
the states ratifying the same.” This was unquestionably Webster’s 
meaning. “ The states are united, confederated.” 

In 1851, to the young men of Albany, he said : “ . . . here is the 
constitutional compact nevertheless still binding ; . . • when called 
upon to fulfil a compact , the question is, will you fulfil it 1 I, for one 
am ready.” Again he speaks of “ the compact of the constitution.” 
being a “ fair ” one. 

At Capon Springs, Va., in June, 1851, he said the following : “ How 
absurd it is to suppose that when different parties enter in a compact 
for certain purposes, either can disregard any one provision, and ex¬ 
pect, nevertheless, the other to observe the rest. ... If the Northern 
states refuse wilfully and deliberately to carry into effect ” one “ part 
of the constitution, . . . and congress provides no remedy, the 
South would be no longer bound to observe the compact. A bargain 
cannot be broken on one side, and still bind the other side.” 

So we see that Mr. Webster himself put the “new vocabulary” in 
requisition, even using the phrase “ constitutional compact,” which he 
so chided Mr. Calhoun about. 

Attempts to explain. — In the above extract from his speech at 
Capon Springs, by the phrase “different parties,” Mr. Webster must 
have meant “states,” and by “certain purposes,” he could but mean 
the reasons for which they federated, the “ parties ” and “ purposes ” 
which the constitution in fact exhibits. It is quite presumable, too, 
that when he used “ compact,” he meant one of “ the compacts 
which,” Hamilton said [in Fed. 85], were “to embrace thirteen dis¬ 
tinct states in a common bond of amity and union.” Nay, more, the 
presumption from this very extract is, that he agreed with Hamilton’s 
assertion in the same article- that “ thirteen independent states are 
. . . the parties to the compact.” 

Mr. Curtis, like Mr. Webster, has attempted to explain the phrase 
“constitutional compact” consistently with the theory of 1830-3. 
He was, said Mr. Curtis, “ speaking of a particular clause in the con- 


WEBSTER’S MASTER-PIECE OF CRITICISxW. 


209 


stitution ... as founded in a compact between different classes of the 
states,” etc. The fallacy of this hardly needs exposure. 1st, the “ par¬ 
ties ” of the constitution are “ states,” and not “ classes of states,” or 
“ sections,” or “the North and South.” 2d, there is no history of 
such “ parties ” as the latter having existed, negotiated, deliberated 
upon, much less established, “ compacts.” 3d, it is descending to 
the ridiculous to suppose that such “parties” agreed upon represen¬ 
tation, taxes, coinage, regulating commerce, etc., and that the 
nation then proceeded to make an imperial or “ supreme law,” em¬ 
bodying such agreements, and binding such “ classes of states ” and 
“ sections ” indissolubly to observe them. 4th, the phrase, “ the 
Northern States,” in the above extract, destroys Mr. C.’s assump¬ 
tion. 5 th, it is a mere solecism to say the constitution is founded 
in compact, while it is not itself a compact. It is both a compact and 
a constitution of federal government. 

Mr. Webster’s Real Views. — These are most likely to be found, 
not in editions of his works, or in biographies prepared by interested 
persons, but in the studied and elaborate memorial to congress on the 
Missouri question, which he and others were elected by the inhabitants 
of Boston to prepare, and which they reported on Dec. 15, 1819. 
[See Appendix F.] Mr. Webster was then in his prime. He had 
been elected to congress from New Hampshire six years before, had 
distinguished himself, had doubtless thoroughly studied our polity 
and its history; and he seems to have been the chairman of the 
committee. 

They present the memorial in the following manner : — 

“ The committee appointed by a vote of the meeting, . . . submit the fol¬ 
lowing : — 

Daniel Webster, 
George Blare, 

Josiah Quincy, 

James T. Austin, 

John Gallison. 

“Boston, Dec. 15, 1819.” 

In this memorial, Mr. Webster calls the united states “the Ameri¬ 
can confederacy! ” and the following are some of the most remarkable 
passages. The constitution provides that “‘ new states may be ad¬ 
mitted into the union.’ The only parties to the constitution, contem- 
vlated by it originally, were the thirteen confederated states.” 

Objecting to an extension of “ inequality of representation, which 
already exists in regard to the original states,” he proceeds to say: 
“ As between the original states, the representation rests on compact 
and plighted faith , and your memorialists have no wish that that 

14 


210 


FALLACIOUS EXPOSITION. 


compact should be disturbed, or that plighted faith in the slightest 
degree violated. But the subject assumes an entirely different char¬ 
acter when a new state proposes to be admitted. With her there is 
no compact and no faith plighted .” [The italics are mine.] 

And he argues throughout on the assumption that a new state 
comes into the union by compact with the states already associated — 
these being represented by their congress. Nay, more, he declares 
that the states in the union have, individually, “ the exclusive posses¬ 
sion of sovereignty.” In reference to the formation of Kentucky and 
Maine, from the territories respectively of Virginia and Massachusetts, 
he says: “ No person has ever doubted that any state, in acceding to 
a division of its territory, and the formation of a new state, has always 
possessed the right to impose its own terms and conditions, as a part 
of the grant. The ground of this right is the exclusive possession of 
sovereignty,” etc. 

I will close the evidence of Mr. Webster’s real views with three 
remarkable extracts, which need no comment, and are absolutely 
inconsistent with any subordination of the commonwealths or re¬ 
publics of America, to their agencies of government, or to that formless 
myth called the nation. 

“No such thing is known in North America” as “the sovereignty 
of government.” [Speech of 1833.] 

“Until the constitution was ratified by nine states, it was but a 
proposal, the mere draft of an instrument. It was like a deed drawn, 
but not executed; ... it was inoperative paper; ... it had no au¬ 
thority ; it spoke no language.” [Ibid.] 

“ It never entered into their conceptions that they were to consoli¬ 
date themselves into one government, that they were to cease to be 
Maryland and Virginia, Massachusetts and Carolina. . . . The objects 
of the common defence and the general welfare, and afterwards the 
objects connected with commerce and revenue, . . . were all they 
adopted as principles and objects of union and association, nothing 
beyond that. . . . Gentlemen, I hope for one never to see the original 
idea departed from.” [Speech at Annapolis, 1852.] 

There can be no doubt that these were and remained Mr. Webster’s 
real ideas; for Massachusetts had prohibited him, and all her officers 
and citizens forever, from having any opinion on the subject. She 
then declared in her constitution (as she does now) that “ the people 
of this commonwealth have the sole and exclusive right of governing 
themselves as a free, sovereign, and independent state, and do and 
forever hereafter shall, exercise and enjoy every power, etc., which is 
not ... by them expressly delegated to the united states.” 

“ By them delegated ! ” Why, here is absolute proof that Massa- 


WEBSTER’S MASTER-PIECE OF CRITICISM. 


211 


chusetts is sovereign over the federal government! Mr. Webster’s 
“ opinion about the sovereignty of a state,” indeed ! Why, he could 
not have been her servant, if he had dared to opine on a question his 
sovereign had settled. “ The Old Bay State ” was ever the stickler, 
par excellence , for absolute sovereignty of a state, and she was right. 
[See also constitutions of N. H., N. Y., and others.] 

Now, in view of Mr. Webster’s early and elaborate statements, and 
the consistent ones just quoted, made near the close of his life, and 
especially the Albany, Capon Springs, and Annapolis speeches, and the 
Cooper and Hickey letters, have I not shown, as I undertook to do, 
that Mr. Calhoun’s resolution expressed the most studied and elabo¬ 
rate views of Mr. Webster himself 1 Might not the latter, consist¬ 
ently, truthfully, and properly, have submitted the said resolution to 
the United States Senate 1 Here it is : — 

“ Resolved, that the people of the several states, composing these 
United States, are united as parties to a constitutional compact, to 
which the people of each state acceded as a separate sovereign com¬ 
munity, each binding itself by its own particular ratification; and 
that the union, of which the said compact is a bond, is a union be¬ 
tween the states ratifying the same.” 

Mr. Webster, in his speech of 1833, said : “ Where sovereign com¬ 
munities are parties, there is no essential difference between a com¬ 
pact, a confederation, and a league. They all equally rest on the 
plighted faith of the sovereign party. A league or confederacy is but 
a subsisting or continuing treaty.” 

In giving this, and many other definitions as a publicist, statesman, 
or lawyer, Mr. Webster seems to forget that to sustain our position, 
we simply fill up his definitions with facts, just as lawyers prove the 
ingredients of murder, larceny, or other crime. In this instance, all 
the facts of history, as well as his own admissions, decisively prove 
the “ league or confederacy.” 

Why was He on both Sides? —Webster’s views last exhibited, 
were popular in Massachusetts previous to 1830. They suited her 
interests. Indeed, during the era of good feeling, viz., in 1825, Mr. 
Jefferson and Mr. Everett agreed that “ the constitution of the united 
states was a compact between independent nations ; ” and, as we have 
seen, Mr. Webster and Mr. Calhoun were in “sweet communion 
joined.” But in 1830-33 Massachusetts had vast interests staked in 
tariffs, navigation laws, fishing bounties, etc., which could be pro¬ 
moted by judicial opinions, commentaries and expoundings in favor 
of a nation. Naturally she then desired an advocate to controvert 
the following of Mr. Webster’s own propositions, viz., that “the only 
parties to the constitution contemplated by it originally, were the 


212 


FALLACIOUS EXPOSITION. 


thirteen confederated states; ” that the provisions of the said consti¬ 
tution “ rest on compact and plighted faith; ” and that the state in 
the union has “ the exclusive possession of sovereignty.” Did not 
Webster accept employment, and act as an advocate 1 

It almost seems as if there were in American history two Daniel 
Websters — one a statesman and jurisconsult, and the other a poli¬ 
tician and advocate. One seems genuine, and the other counterfeit. 
The former, only, dwelt in, and breathed the pure atmosphere of 
truth. Perhaps it were better to say that the early stream of this 
great life descended, and, like an underground river, ran for years 
beneath the material interests and selfishness of his commonwealth, 
but finally flashed out and sparkled on to the deean, reflecting the 
truth-beams of Heaven! 


CHAPTEE IX. 


LINCOLN’S PLAIN ENGLISH. 



'IE foregoing interpretations produced irrepressible conflict, 


-L Lincoln and war! The doctrines of Dane, Story, Webster and 
othcj'G (taught, as I have shown, by the original enemies of the con¬ 
stitution, to prevent its adoption) produced, as George T. Curtis 
correctly asserts, “ that body of public convictions ” which moved and 
enabled one part of the states, by the use of the governmental 
agency of all, to subjugate the rest. Conceding here, once for all, that 
under the jus gentium , the former had as good a right to coerce, as the 
latter to secede, I pass on. 

One of these “ public convictions ” was that the constitution was 
a law upon states, and not a compact between or among them; and it 
was this which made peace impossible in 1861. The successful party 
naturally said : “ The constitution is the supreme law , and we are 
elected by the nation, to be the government ; and to enforce the said 
law with the army and navy if necessary; and if states exercise 
judgment and will contrary to ours, in any affair, we must treat them 
as counties in rebellion. Power is given to us, by the nation, to rule 
them, and we are the final judges of the extent of that power. ” 

“Subjugate” the states, I say, for all are subjugated, though of 
course the tame and obedient ones are not yet dealt with. By 1866, 
such progress had been made toward despotism, that the conservative 
convention, held at Philadelphia, declared “ the government ” to have 
“ absolute supremacy ! ” and the states to be in “ allegiance ” to it!! 
The personnel of “ the government ” has become a corporate despot, 
wielding the stupendous enginery of imperialism over an empire of 
provinces. President Grant, standing near the close of his adminis¬ 
tration, and viewing the result of the war, of reconstruction, and of his 
own agency in shackling and coercing states, exclaimed, “What we 
have done in Louisiana and Arkansas, we will do in New York, Illi¬ 
nois, and Missouri, when necessary.” Meanwhile, here, there, and 
yonder, all over the land, imperial acts were done, and significant 
emblems of central sovereignty set up — each with all the meaning 
of the cap of Gesler in the market-place of Altorf! 


214 


FALLACIOUS EXPOSITION. 


The truth is, the change in the government, from agency to sove¬ 
reignty, is come, and is now hardening down upon us, which, as Burke 
says, has heretofore “perverted from their purposes” “ all the free mag¬ 
istracies of the world.” 

Let us now cursorily review the new 7 doctrine, and see how it ap¬ 
pears dressed up in 

President Lincoln’s Plain English. — It is much to be regretted 
that the expounders did not, in the great era of perversion —1830-33 
— link on to their logical chain those candid and startling, but legiti¬ 
mate conclusions, afterwards stated with pen and sword by the late 
Abraham Lincoln as President; for such unfounded notions w r ould then 
have been derided, and the utterers steadily prevented from exercis¬ 
ing public functions. 

We are sometimes startled, as well as amused, to see how poetry 
and oratory become nonsense and absurdity upon being put in plain 
English. Many a Lincoln has proved his own honesty and simplicity, 
while exhibiting his teacher as a mere sophist, or falsifier. 

In 1861, after being elected to the presidency, Mr. Lincoln in a 
speech in Indiana, and in his inaugural address, said and assumed 
that the states are but counties , without sovereignty, and that the gov¬ 
ernment is sovereign, and can rightfully coerce the states to obey it. 
In his extra-session message of the same year, he said : “ The states 
have their status in the union, and they have no other legal status. 

. . . The union is older than any of the states, and, in fact, it created 
them as states. Originally, some dependent colonies made the union, 
and, in turn, the union threw off their old dependence for them, and 
made them states such as they are.” “ Our states have neither more 
nor less powder than that reserved to them in the union, by the con¬ 
stitution, no one of them ever having been a state out of the 
union.” 

The deluded man had read Mansfield’s Political Grammar, Webster’s 
two great speeches, Jackson’s Proclamation, and — to graduate on — 
Story’s Commentaries, taking it for granted that these authors were 
correct; and not knowing that their peculiar expositions were falla¬ 
cious, and were, moreover, identical wdth the charges originally made 
against the constitution, by its foes ; and that it was only because the 
said charges were most signally refuted by the advocates of the con¬ 
stitution, that the American commonwealths adopted it. 

Justice to Mr. Lincoln. — It seems proper to say that after his 
nomination, he had no time — even if he had been competent — to 
investigate for himself, and deduce correct conclusions. Moreover, the 
dogmas and arguments of Dane, Story, Webster, and Jackson were 
the platform, nay, the very soul, of his party. Confiding in the honor 


LINCOLN’S PLAIN ENGLISH. 


215 


of these expounders, he unqualifiedly accepted their treasonable per¬ 
versions, and they, more than he, are responsible for the bloody con¬ 
sequences. From their premises and arguments, he concluded that 
coercion of states was constitutional and proper. 

It is evident that he was “ more sinned against than sinning.” He 
was a person of fair intellect, slight education, limited knowledge, no 
research, kind heart, jocular disposition, a man, in short, of excellent 
nature — a strange mixture of simplicity and shrewdness—just the 
man with his inexperience in statesmanship, and his vague and hazy 
notions of political ethics and constitutional history and law, to be 
misled by the sophists of his party, and to be the instrument of 
crafty and unscrupulous politicians. He was not a man to contrive 
wickedness — to wilfully subvert the constitution, and to build his 
greatness on his country’s ruin, but he could be moved, by various 
plausible and delusive pleas and pretexts, to do what he would have 
shrunk from with horror, had he understood the designs, pr seen the 
hearts of the movers. 

At all events, upon the ground indicated by the above extracts, the 
Southern states were coerced, vi et armis, for four years; and, at last, 
brought to writhe under the heel of federal military power ! 

At first, Lincoln’s above-quoted dicta sounded like a huge joke; 
which was laughed at, till army after army from the “ Northern hive ” 
marched down to perpetrate it upon the South; whereat the laugh 
changed, for the joke was the fiat of an irresistible mob, that had be¬ 
come a great party, and for many years had fanatically surged like 
the many-voiced sea against the barriers of the constitution. 

In glancing at some of this unfortunate man’s conclusions from the 
assertions and arguments of his aforesaid teachers, we shall see that 
derision would be the fittest notice, but for the abhorrent conse¬ 
quences. Acting upon their doctrines, he made the land dark with 
death and mourning. But his guilt, to that of his teachers, morally, 
is as much less, as homicide by misadventure is less than that with 
malice prepense. 

States and Counties politically equal ! — “ Suppose” said he, “ a 
state ” and “ a countyare “ equal in territory and inhabitants, in what 
on principle is a state better than a county ? Would an exchange of 
names be an exchange of rights ? ” 

Common sense, if present, would have answered : All the original 
states declared themselves to be separately “ sovereign, free, and inde¬ 
pendent,” at the moment of making, and up to the finishing of, the 
federal constitution; and it was in this character that they made 
and finished it. No county ever had such a character. Again, the 
states were named in the constitution, as the parties and actors of the 


216 


FALLACIOUS EXPOSITION. 


system. The counties were not mentioned. Again, each and every 
state, old and new, has now, as part of her constitution, or rather her 
declaration of rights, that “ all political power is inherent ” in her peo¬ 
ple, or equivalent words, while a county is a mere subdivision of such 
state, incorporated by her, with mere municipal powers, and repealable 
at will. The former is the creator, and the latter her creation. And 
finally, the states ratified and ordained the federal constitution of gov¬ 
ernment. No county ever acted in the premises, or could do so ! 

A state and a county equal, indeed! 

No doubt he honestly thought his teachers said so. 

Sovereignty, if not asserted, is lost. — “ Much is said about the 
1 sovereignty * of the states , but the word even, is not in the national consti¬ 
tution ; nor, as is believed, in any of the state constitutions. . . . No one 
of our states, except Texas, ever was a sovereignty .” 

This extract amounts to a mere guess, and is untrue and absurd, 
except as to the trivial fact that the word “ sovereignty ” is not in 
the federal instrument. 

A little reflection would have shown Mr. Lincoln that the word 
need not be used, if the thing is in the states; and that this question 
is one of fact, which was settled by the solemn declaration of all, 
that “ each state retains her sovereignty .” This declaration proves that 
the fact existed. 

This sovereign will of each state — thus declared by all — existed 
and acted, until the “ federating anew ” was done ; that is to say, until 
“ a more perfect union ” of the states, than the previous one, was formed > 
until the functionaries of the new government were elected ; until they 
organized and went to work ; and until the people, as persons, yielded 
consent and habitual obedience to the new system. 

That the people, as sovereign commonwealths, began to make and 
impose upon the people, as persons, a government, no one will deny. 
How absurd it was to do so, if they had no right to go through, and 
coerce obedience. It is beyond question that they acted with sove¬ 
reign will, and “ ordained and established and we look in vain along 
the course of time and history, for any change in that sovereign will, 
and for involuntariness of union ; until we come sadly to contemplate 
Lincoln and war ! 

Many thoughtless people think that the “ powers ” of declaring war, 
making treaties, coining money, levying taxes, etc., are sovereignty; 
but these are simply “powers” or authorities, delegated by each 
state, by virtue of its sovereignty, to the united states, and are in no 
sense sovereignty, this being, as Daniel Webster said, never in the gov¬ 
ernment, but always in the people — these as commonwealths, and 
without any change whatever, being the self-united states. 


LINCOLN’S PLAIN ENGLISH. 217 

As I have heretofore shown, New York, Massachusetts and New 
Hampshire, in their constitutions , declare their sovereignty , eo nomine / 
and equivalent declarations are made by all the states, including Mr. 
Lincoln s own state of Illinois, which, with all the other Northwestern 
ones, were, according to the express stipulation of the treaty of cession 
by Virginia to the united states, to be admitted into the union, with 
“ the same rights of sovereignty , freedom and independence with the 
other states ; ” and Illinois has ever since been — though Mr. Lincoln 
was probably not aware of it — “a sovereign , free, and independent 
state,” with all political power and rights, not only in her absolute 
ownership, but — excepting such powers as she delegated to the united 
states : — in her actual possession ; and so she substantially declares in 
her constitution. 

But Mr. Lincoln was excusable for attaching importance to the non¬ 
mention of sovereignty in the federal pact, for Mr. Webster (apparently 
believing that if a note, bond, or other instrument, did not call itself 
such, it might be something else) strenuously argued that the consti¬ 
tution was a constitution, because it called itself a constitution. This 
is another of those numerous subterfuges, or shams of argument, the 
“ school” is remarkable for. Mr. Webster’s sounding phrases on this 
subject, expressed nothing, for states could constitute a constitution of a 
government, and call it a constitution, just as easily and properly as 
the people of a state, or of the so-called nation, could. 

“ What is itl ” instead of “What does it call itself 1” is the proper 
question ; and the conclusive answer is — “ The constitution of [not 
the united people or nation, but] the united states/ 

Mr. Lincoln seemed to think that nations or states must, somehow, 
lose their sovereignty by not mentioning it in their compacts. Possi¬ 
bly he asserted ownership in the powers of attorney he gave ; or his 
jus disponendi, his sound mind, and the name of the document, in 
each of his grants or conveyances ! A Southern supreme court of the 
same flock, considered defective a certain class of titles, which all 
courts had for generations recognized, because the subjects of such 
titles were not mentioned in the federal con^itution! 

. The Union created the States! — “ The union is older than any 
of the states, and in fact it created them as states .” 

He probably guessed that this was what Story and Webster meant, 
and he was not far wrong, though they would have blushed to s_ee 
their views thus paraphrased. “ Union of states,” and “ united states,” 
are both constitutional phrases; and he might as well have said 
“ united is older than any of the states, and in fact it created them 
as states; being united colonies before they were united states, it fol¬ 
lows that united made them states ! ” 


218 


FALLACIOUS EXPOSITION. 


Would even Mr. Lincoln (let alone Story and Webster) have paid 
the price of pearls for the string on which they were strung 1 ? And 
yet, in the phrase — “a string of pearls,” “ string ” bears the same rela¬ 
tion to “pearls,” that “union” does to “states.” The same remark 
applies to the phrases : “a set of diamonds,” “a purse of guineas,” 
“ a guild of men,” and a federation or union of republics. The first 
name in each sentence is merely a descriptive one, while the main 
significance is in the last. The truth is, the constant use of the word 
“union,” in place of the constitutional phrase “the united states,” 
and the various phrases expressing “ union of states,” is a mere sub¬ 
terfuge, for these phrases are fatal to the whole argument of the ex¬ 
pounders. They show that all original authority must be in the 
several states , while all delegated authority must be in “ the united states” 
The states must have pre-existed to be associated , while the same states 
must continue to exist, to be the united states. 

The States became subject to their own Union ! — Let us notice 
one more gem. The states have “ their status in the union, and they 
have no other legal status. ... Our states have neither more nor less 
'power than that reserved to them in the union by the constitution, no one 
of them ever having been a state out of the union.” 

Every word is fallacious and untrue, for the states were necessarily 
pre-existent to the union of them ; their wills made the union ; their 
instrument of compact throughout contemplates and treats them as 
the sole parties to, and actors in, the union; and finally, they call 
themselves therein a “ union of states ” and “ united states ” — using 
these very words. As individual states, they must have possessed all 
original authority, and, as an association, they could but hold dele¬ 
gated power. 

But the climax of Lincoln’s absurdity consists in his pointing to 
the tenth amendment, as the evidence of the states having no other 
powers than those “ reserved to them in the union by the constitu¬ 
tion,” and thus showing that our foolish fathers left the states, under 
the original constitution, absolutely without powers; and had to 
amend, in order to give them a few ! 

Common sense would have taught Mr. Lincoln that the states of 
the association “ delegated ” and “ vested ” all the “ powers ” in the 
pact; and “ retained ” all rights and powers not delegated; i. e. kept 
them out of the pact, and in themselves; that the powers delegated 
must be still owned by them, and hence that the states have all 
powers, including those in “the constitution of [i. e. belonging to] the 
united states.” 

Everybody knows, from the case of Texas, North Carolina, and 
Rhode Island — to say nothing of others — that Mr. Lincoln’s asser- 


LINCOLN’S PLAIN ENGLISH. 


219 


tion, that no state was ever such out of the union, is entirely un¬ 
founded ! But if it were true, it would not affect the question of 
sovereignty, as this is only predicable of will, and as will only resides 
in the republics or organizations of self-ruling people. 

Seeing Things upside down — Would to God these perversions 
and blunders had been as harmless as they are amusing! They are 
only equalled by those of the philosophers who contend that the sun 
diurnally circuits the earth; or that of the boozy wight, standing on 
the wrong side of the square, awaiting the arrival of his house, so 
that he can step in \ or that of the Irishman digging away a bank 
“ to let the dark out of his cellar ! ” 

These are called “ constitutional views ! ” If “ views ” at all, they 
are ‘‘views” afar off —through the moral mirage of platforms, par¬ 
tisan speeches, and sectional commentaries, which distort every thing, 
and turn it upside down. Why! if Hamilton, Jay, Washington, 
Hancock, Franklin, and all those fathers who were so fortunate as to 
die early, were to revisit their beloved America, such “views” would 
astonish them as much as it would to see people standing on their 
heads, houses inverted, ships “walking the waters,” with masts for 
legs; trees rooted in the sky; rivers running to their sources; or 
babes giving birth to their parents. 

They would find their voluntary union of states to have grown in¬ 
voluntary and indissoluble; states degraded to counties, and returned 
to a worse than British provincialism; and the quondam govern¬ 
mental agency transmuted to a new and monstrous entity — a soul¬ 
less being, with “ absolute supremacy,” and swaying the sceptre of an 
empire! 

The Worship of the Idol “Union.” — In the very next paragraph 
to the one just reviewed, Mr. Lincoln uses the word “ union,” in the 
absurd sense I have indicated, seven times in nine lines. The priests 
of union-worship, wishing to avoid the ideas couched in the full 
phrase, “union of states,” or “united states,” use the word “union” 
without its proper adjuncts, and attribute to it corporate personality, 
and sovereign authority; besides falsely saying it is a union of peo¬ 
ple, and not a union of states. They cite as their sole proof, the 
insignificant tag called the preamble, which, though vastly important 
as a statement of motives, is really no more of the compact or law, 
than the tail, or the kink of it, is of the pig; and conclude the argu¬ 
ment by the untruth, that the states ceded or surrendered (i. e. alien¬ 
ated) to the said “ union,” a paramount or supreme sovereignty over 
themselves. Not a line of the constitution or history, hints at any 
such transfer, while all evidences show that the separate states dele¬ 
gated (but did not alienate) powers to “ the united states ” (and not 


220 


FALLACIOUS EXPOSITION. 


to the “ union,”) these states thus governing themselves, as to their 
federal affairs, through their federal agency. 

The sophistical and quibbling priests know that by using the con¬ 
stitutional phrases “united states” and “union of states,” they 
would direct the thoughts, even of the simplest mind, to moral or 
political persons — commonwealths self-joined for self-government and 
self-preservation. They know that the said mind would look into the 
pact, and see “ the states in this union ” [Art. IV.] to be the parties, 
the delegators, the sovereigns; and the government to be the crea¬ 
tion, and the agent of the said states. Aye, they know that men 
who have merely enough brains and education to read and count, 
may see, in the instrument, specified powers, confided to the said 
agent by the said sovereigns; can, on a tally-stick, notch the num¬ 
ber of them; and must know that a president, whether named 
Buchanan, Lincoln, Johnson, Grant, or Hayes, becomes a perjured 
usurper and traitor, and deserves to be hung, the moment he goes 
beyond them. 

These are the Reasons why, under pretence of interpretations, 
commentaries, judicial decisions, etc., the so-called expounders sophis¬ 
ticate, misrepresent, garble, and falsify the sacred records of the 
country; why they found a theory on the preamble that belies the 
compact; why Story adds an eighth article to the constitution [Story, 
Com. § 1856], and why the names of the signers, who simply planned, 
but did not ordain, the compact, are always published with the in¬ 
strument, to make the impression that they ordained, while the 
names and acts of the states , who did ordain and establish , are always 
suppressed or ignored ! 

These are the reasons why our deluded people are induced to look 
up to flags, soaring eagles, and stars — not down to what these are 
symbols of; to search in “the milky baldric of the skies” for the 

constellation of the union, rather than grovel in — to understand_ 

the actual system of associated states; and to keep their “ eyes in 
fine frenzy rolling, from earth to heaven,” instead of watching, with 
that “ eternal vigilance which is the price of liberty,” to see that the 
sacred constitution is preserved, and its duties done. 

Just so the priests of idolatry divert attention from the statue of 
wood or stone; prohibit reasoning about it; and send the heated and 
fanatical imaginations of devotees, filled with fear and awe, in search 
of some invisible spirit, whose all-power can favor or harm them, 
according to their obedience and gifts to the priesthood! 

Eternal Vigilance is the Price of Liberty! — The people of America 
must come down from stars, and eagles, and flags ; and regard matters 
of political government as human and earthly affairs, to be arranged, in 


LINCOLN’S PLAIN ENGLISH. 


221 


w 

a common-sense and judicious manner, for the benefit of all concerned. 
A voluntary union among neighboring states must be founded on 
amity and mutual interest; and these motives, as well as the volun¬ 
tariness, must be preserved, or the association of states becomes an 
empire of provinces! 

Fisher Ames likened the states to beautiful and useful structures, 
standing upon the naked beach, and the union to a dyke fencing out 
the flood; and said that without this, the next spring tide would 
sweep them to a common destruction. [II. Ell. Deb. 159.] 

Americans must become practical — nay, vulgarly prudent, and 
even grovel in and among their defences, remembering that their 
institutional walls are to protect their precious blessings in their cita¬ 
dels of liberty, the commonwealths, not more from exterior force, 
than from their own rulers. 


CHAPTER X. 


WASHINGTON’S POLITICAL FAITH. 

H AYING noticed the preposterous theory predicated of the con¬ 
stitution by Lincoln, I will show the directly opposite view 
taken of the same sacred words and figures by the great Wash¬ 
ington. 

I need not contrast the men, as it will be duly done by history. 
But their assertions and opinions should be compared. And to deter¬ 
mine preponderance, perhaps we should contrast Lincoln’s training 
and associates, and his sudden rise and growth from partisan and 
sectional antagonism, with Washington’s gradual growth of intel¬ 
lectual stature, his exemption from sectional and partisan preju¬ 
dice, and his being of that august band of patriots — 'primus inter 
pares — who made American federal liberty institutional. Nay, more, 
Washington’s intercourse with the giants of those days, was fraternal 
and close through their generation; and he bore a leading part in all 
the discussions and ordainings which make up the recorded political 
history and philosophy of that sublime epoch. 

It may be said, without fear of contradiction, that the statements 
of the fathers, contained in Part L, Chapter VII., of this work, are 
precisely the views of Washington. The following extracts show this 
beyond all doubt or cavil. 

And if the American people be really possessed of the spirit of 
’76, they will henceforth follow the commentaries of the expounder, 
par excellence, George Washington ! and thus preserve the common¬ 
wealths and their union! 

Washington was as truly a state-rights, or rather state-sovereignty 
man, as Jefferson or Calhoun, and understood our institutions quite 
as well as they did. But he never thought of the miserable figments 
which Story, Webster, Lincoln, and the Philadelphia convention of 
1866, foisted upon the constitution as expoundings of it; viz., that 
the making of the union consolidated the several commonwealths of 
America into one national unit; or, in other words, the people as a 
nation, in tlieir national constitution, “distributed their powers be- 



w 


WASHINGTON’S POLITICAL FAITH. 


223 


tween their general government and their several state governments; ” 
and that so far as the constitution went, “ so far state sovereignty was 
effectually controlled ; ” or, to sum up the matter in a sentence, that 

the states were reduced to mere fractions of the great unit,_ i. e. to 

counties or provinces of a state. 

The most of the extracts will be found in Sparks’s “ Writings of 
Washington.” If they are elsewhere, proper citations will be given. 
The reader will please observe that this “ great expounder ” begins by 
mentioning that the states [are] to appear in the convention; ” that 
he speaks, all the way through, of the states adopting, ratifying, or 
acceding to the compact; that he calls the people “the people of 
these states, and the new system, “the federal government of these 
states ” (and, by the way, this is the unanimous expression of the 
“ convention of states ” that he presided over); that he speaks of the 
constitution as providing for “the political relation which is to sub¬ 
sist between “the states,” and of “the measures, taken by the dif¬ 
ferent states, for carrying the new government into execution; ” and, 
finally, that he says it will be “ an important epoch in the annals of 
this country,” “ when the states begin to act under the new form.” 
Washington to Madison, March 31, 1787 : — 

“ I am glad to find that congress have recommended to the states 
to appear in the convention.” 

General Knox to Washington, March 19, 1787 : — 

“ Your name has had great influence to induce the states to come 
into the measure.” 

Washington to Edmund Randolph, April 9, 1787 : — 

“ I very much fear that all the states will not appear in con¬ 
vention.” 

Washington to David Stuart, July 1, 1787 : — 

“Whilst independent sovereignty is so ardently contended for, 
whilst the local views and separate interests of each state will not 
yield to a more enlarged scale of politics,” etc., “the situation of the 
country ” must be “ weak, inefficient, and disgraceful! ” [See remarks 
on the following letter.] 

The celebrated letter of Washington to “ the president of congress,” 
written by unanimous order of the convention of the deputies and 
subjects of the states, to accompany the constitution proposed by the 
said convention, for the adoption or rejection of the said states, dated 
September 17, 1787, contains the following: — 

“ The friends of our country have long seen and desired that the 
power of making war, peace, and treaties, that of levying money and 
regulating commerce, and the correspondent executive and judicial 
authorities, should be fully and effectually vested in the general gov- 


224 


FALLACIOUS EXPOSITION. 


ernment of the union; but the impropriety of delegating such exten¬ 
sive trust to one body of men is evident. Hence results the necessity 
of a different organization. 

“ It is obviously impracticable, in the federal government of these 
states, to secure all rights of independent sovereignty to each, and 
yet provide for the interest and safety of all. Individuals entering 
into society must give up a share of liberty to preserve the rest. . . . 

“ In all our deliberations on this subject, we kept steadily in our 
view . . . the consolidation of our union, in which is involved our 
prosperity, felicity, safety, perhaps our national existence. This im¬ 
portant consideration . . . led each state in the convention to be less 
rigid, . . . and thus the Constitution ... is the result of a spirit of 
amity, and of that mutual deference and concession which the pecul¬ 
iarity of our political situation rendered indispensable.” He finally 
says that it may not meet “ the full and entire approbation of every 
state; ” but that “ each will doubtless consider that, had her interests 
alone been consulted,” it might have been “ disagreeable or injurious 
to others.” 

We see from this letter, as well as from the one dated July 1, 1787, 
that Washington used the word “sovereignty,” as it was frequently 
used in that day, in the second, subordinate, and improper sense of 
government. Both state and federal governments were often called 
sovereignties, — for the reason, probably, that they occupied the same 
position relatively to the subjects of government that the sovereigns 
of Europe did, — and it was then, as it is now, sometimes forgotten 
that those potentates claimed to rule by Divine right, and maintained 
the claim by force, while our governments, being creations and having 
only derivative authority, must be subordinate, and not sovereign. 
In truth, they exist by the will, and rule by the consent of the people. 
A thousand evidences might be given; but Mr. Webster’s admission, 
in 1833, will suffice : “The sovereignty of government is an idea be¬ 
longing to the other side of the Atlantic. No such thing is known in 
North America. . . . With us all 'power is with the people. They 
alone are sovereign, and they erect what governments they please, and 
confer on them such power as they please.” 

And Washington, as will be seen, always recognized the truth that 
the “ all power ” in question was in the people as states, and that they 
were only organized and capable of political action as such; and, con¬ 
sistently, each state declared or implied in her organic law that all 
power was inherent in herself, i. e. her people. [See constitutions of 
Massachusetts, New York, and others.] 

Another important point of the above letter must be noted here. 
In speaking of the legislative, executive, and judicial powers to be 


WASHINGTON’S POLITICAL FAITH. 


225 


“ vested in the general government,” Washington and the convention 
say : “ The impropriety of delegating such extensive trust to one body 
of men is evident. Hence results the necessity of a different organi¬ 
zation .” It is quite obvious that the “different organization ” spoken 
of is the complete government of three co-ordinate departments, — 
the legislative one being in two branches,—this government operat¬ 
ing directly on the individual people, and executing its own powers; 
whereas the “one body of men ” in the congress to be superseded, had 
no power to enforce its laws, and no direct contact with the people. 
It is also obvious that, in both cases, the government was made and 
empowered by pre-existing and continuing states, and that hence it 
was impossible that anything other than a federation should be 
formed. The oft-repeated constitutional phrases, “ united states,” and 
“ union of states,” of themselves are full proof of a confederacy. This 
explanation is made for the purpose of exposing the mistake made by 
Story, Webster, and the Supreme Court of the United States, to the 
effect that the change referred to by the fathers was a change from a 
federation to “ another system ,” which was not a federation. 

So far from this being true, the fathers generally (including Wash¬ 
ington) asserted the new system to be a “confederacy,” and, more¬ 
over, they stated the actual change wrought, precisely as Washington 
and the convention do in the above letter. Both ideas, i. e. the con¬ 
federacy and the character of the change, are happily put in juxta¬ 
position by Mr. Spaight, in the convention of North Carolina, of which 
(after serving in the federal convention) he was an able and active 
member. Said he : “ What the federal convention has done is a mere 
proposal. It was found impossible to improve the old system, without 
changing its very form; for, by that system, the three great branches 
of government are blended together. . . . The proposing of a new 
system, to be established by the assent and ratification of nine states, 
arose from the necessity of the case. ... It is adopted by ten states 
already. The question then is, not whether the constitution be good, 
but whether we will or will not confederate with the other states.” 
[IV. Ell. Deb. 206-8. See also Pinckney’s remarks, IV. Ell. Deb. 
256.] And in Elliott’s Debates generally, it will be seen that the 
change was explained as above, — all the fathers recognizing the 
states, whose subjects they were, as the parties to, and the sovereigns 
in, the new system. 

We see, then, that Washington and the whole convention of 1787, 
considered the change being made as the substitution of one federal 
government for another, — the differences between the two being in 
the mode of organization, and in the direct connection of the new one 
with the people, instead of the legislatures of the states. The com- 

15 


226 


FALLACIOUS EXPOSITION. 


monwealths were recognized by all as the sole constituents of the 
new, as they had been of the old federation. 

That this was Washington’s view will become clearer as we ad¬ 
vance. 

Washington to Patrick Henry, September 24, 1787, sends “copy of 
the constitution which the federal convention has submitted to the 
people of these states. . . . Your own judgment will at once dis¬ 
cover the good and the exceptionable parts of it. ... I wish the 
constitution which is offered had been more perfect, but I sincerely 
believe that it is the best that could be obtained at this time. As a 
constitutional door is open for amendments hereafter, the adoption of 
it, under the present circumstances of the union, is, in my opinion, 
desirable.” 

Benjamin Harrison, having received a duplicate of the above letter, 
wrote a reply, dated October 4, 1787, from which I extract the fol¬ 
lowing, to show that these two great patriots agreed in thinking the 
constitution defective, and that it might be a failure, as it was an 
experiment. Surely they could never have supposed that the voluntary 
parties making it, and creating the government under it, would be¬ 
come, by its operation, involuntary parties to it, as it is now asserted 
they are. 

“ I cannot divest myself of an opinion that the seeds of civil dis¬ 
cord are plentifully sown in very many of the powers given, both to 
the president and congress; and that if the constitution is carried 
into effect, the states south of the Potomac will be little more than 
appendages to those to the northward of it. . . . In the interim , 

I shall only say that my objections chiefly lie against the unlimited 
powers of taxation and the regulations of trade, and the jurisdictions 
that are to be established in every state, altogether independent of 
the laws thereof. The sword and such powers will — nay, in the na¬ 
ture of things must — sooner or later, establish a tyranny not inferior 
to the triumvirate or the centumviri of Borne.” 

Washington to Madison, October 10, 1787 : — 

“ I scarcely think any powerful opposition will be made to the con¬ 
stitution’s being submitted to a convention of this state.” 

Colonel George Mason, in his objections to the constitution [I. Ell. 
Deb. 494], expressed the wish that it might be provided in the federal 
compact that any navigation law should require a two-thirds vote. 
Washington aptly wrote, in a letter to David Stuart, October 17, 1787, 
that “ no men, bodies of men, or countries, will enter into any compact 
or treaty, if one of the three is to have a negative control overthe 
other two. . . . There must be reciprocity, or no union.” 

Now, here is positive proof that Washington considered the present 


WASHINGTON’S POLITICAL FAITH. 


227 


federal constitution to be a “ compact or treaty ” “ between the states 
ratifying the same.” 

Washington to Bushrod Washington, November 10, 1787 : — 

“A candid solution of a simple question does, in my opinion, 
decide the dispute, namely, Is it best for the states to unite 1 ... If 
the union of the whole is a desirable object, the component parts must 
yield a little in order to accomplish it.” He then asks what course 
the opponents would adopt for Virginia, “ if nine other states should 
accede to the constitution 'l . . . The power under the constitution 
will always be in the people. It is entrusted for certain defined pur¬ 
poses and for a certain limited period to representatives of their own 
choosing. . . . Their servants can, and undoubtedly will, be recalled,” 
if they act “contrary to the interests and wishes of the people.” 
“No government can be well administered without powers; yet, the 
instant these are delegated, although those who are entrusted with the 
administration are no more than the creatures of the people, act, as it 
were, but for a day, and are amenable for every false step they take, 
they are, from the moment they receive it, set down for tyrants.” 
Washington to Madison, in congress, December 7, 1787 : — 

He speaks of the “ solicitude ” felt concerning the prospective de¬ 
cisions of the conventions of the states. After speaking of the mo¬ 
tives of several of the states, he continues : “If these, with the states 
eastward and northward of us, should accede to the federal govern-' 
ment, I think the citizens of this state will have no cause to bless the 
opposers of it here, if they should carry their point.” 

Washington to Jefferson, January 1, 1788 : — 

Speaking of the chances of the new constitution being adopted, he 
says: “Pennsylvania, New Jersey, and Delaware are the only states 
whose conventions have, as yet, decided on it.” He then says : “ Con¬ 
necticut and Massachusetts hold their conventions this month, Mary¬ 
land in April, and Virginia in June,” etc. He apprehends “more or 
less opposition in the most of the states,” formidable in Virginia as 
well as New York, but hopes success. He finally speaks of the need 
of “an efficient general government to regulate our commercial con¬ 
cerns, to give us national respectability, and to * connect the political 
views and interests of the several states under one head, in such a 
manner as will prevent their forming separate connections wdth Eu¬ 
ropean powers, or being involved in European disputes.” 

Washington to Edmund Randolph, governor of Virginia, January 8, 

1788: — 

“ There are some things in the new form which I readily acknowl¬ 
edge do not and never will obtain my cordial approbation; but, I be¬ 
lieve, . . . that, in the aggregate, it is the best constitution that can 


228 


FALLACIOUS EXPOSITION. 


be obtained; and that this or a dissolution of the union awaits our 
choice, and is the only alternative before us.” 

Washington to Count Rochambeau, January 8, 1788; also to Wil¬ 
liam McIntosh, same date : — 

He speaks of “ the people of these states,” and says : “ It [the con¬ 
stitution] is to be submitted to conventions chosen by the people in 
the several states, and by them approved or rejected.” This of itself 
shows that Washington considered the people, as organized in states, 
to be absolutely sovereign. 

Washington to Madison, in congress, January 10, 1788 : — 

Speaks of the constitution being likely to produce that “ energy, 
stability, and security which is, or ought to be, the wish of every 
good citizen of the union.” Speaking of the arguments to be used in 
the convention of Virginia, he “ expects the most prevailing one will 
be, that nine states at least will have acceded to it.” 

Washington to Marquis De Lafayette, February 7, 1788 : — 

“ It appears to me little short of a miracle that the delegates from 
so many states, different from each other in their manners, circum¬ 
stances, and principles, should unite in forming a system of national 
government so little liable to well-founded objections. . . . With re¬ 
gard to the two great points — the pivots upon which the whole ma¬ 
chine must move — my creed is simply, — 

“ First, that the general government is not invested with more 
powers than are indispensably necessary to perform the functions of a 
good government, and, consequently, that no objection ought to be 
made against the quantity of power delegated to it. 

“Secondly, that these powers — as the appointment of all rulers 
will forever arise from, and, at short stated intervals, recur to, the free 
suffrage of the people — are so distributed among the legislative, ex¬ 
ecutive, and judicial branches, into which the general government is 
arranged, that it can never be in danger of degenerating into a mon¬ 
archy, an oligarchy, an aristocracy, or any other despotic or oppressive 
form, so long as there shall remain any virtue in the body of the 
people.” 

He then proceeds to recognize the truth that the constitution can 
afford no security against the consequences of “ the corruption of the 
morals ” of the people, their neglect of the duty of being vigilant as 
to the preservation of their rights, and the “successful usurpations 
that may be established ” on the ruins of liberty. 

And he concludes by speaking of “ the prospect of the constitu¬ 
tion’s being adopted by nine states or more. Pennsylvania, Delaware, 
New Jersey, and Connecticut have already done it. It is also said 
that Georgia has acceded.” 


WASHINGTON’S POLITICAL FAITH. 


229 


Washington to Lafayette, April 28, 1788 : — 

“The people retain everything they do not, by express terms, give 
np. Hence a bill of rights is nugatory/’ 

Washington to Jay, May 15, 1788 : — 

“ Should South Carolina, now in session, decide favorably, and the 
government thereby (nine states having acceded) get in motion, I 
scarcely conceive that one of the remainder, or all of them together, 

. . . would incline to withdraw from the union with the other nine.” 
Washington to General Knox, June 17, 1788 : — 

“ The information of the accession of South Carolina to the new 
government gives us a new subject of mutual felicitations.” Then, 
expressing the hope that it will have influence on the convention of 
Virginia, he concludes by saying that there is every prospect that the 
constitution will be adopted in New Hampshire. “ I cannot but hope, 
then, that the states which may be disposed to make a secession [from 
the union] will think often and seriously on the consequences.” 
Washington to Jay, June 8, 1788 : — 

“ 1 congratulate you on the adoption of the constitution by the 
convention of South Carolina.” He then expressed regret that the 
New York convention had a majority of anti-federalists, and said: 
“ If this state should, in the intermediate time, make the ninth that 
shall have ratified the proposed government, it will, I flatter myself, 
have its due weight.” 

Washington to Marquis De Lafayette, June 17, 1788 : — 

“ 1 mentioned [in a letter by Mr. Barlow] the accession of Maryland 
to the proposed government. . . . The accession of one state more 
will complete the number (nine) needed to establish it.” He evidently 
thought states^ and not a nation, were “ to establish it” 

Washington to General Pinckney, June 28, 1788 : — 

Speaks of the adoption by the Virginia convention, by a vote of 89 
to 79. He speaks of the people of Alexandria devoting this day to 
rejoicing, and their enjoyment being heightened by the news that 
“New Hampshire had, on the 21st inst., acceded to the new confed¬ 
eracy, by a majority of 11 voices, that is to say, 57 to 46.” Mark the 
important words “ acceded to the new confederacy ! ” 

He says, further, that they had the jfleasure of “pouring a libation 
to the prosperity of the ten states, that have actually adopted the 
general government;” and expresses a “hope that the union will 
now' be established on a durable basis. Providence,” he continues, 
“ seems still disposed to favor the members of it, with unequalled 
opportunities for political happiness.” 

As to North Carolina, he says : “ I should be astonished if that 
state should withdraw from the union.” As to New York, he says: 


230 


FALLACIOUS EXPOSITION. 


“ The majority of the convention seems opposed to the adoption of the 
new federal system.” But he seems to count on the example of the 
states which have already acted, for he says in conclusion : “ The de¬ 
cision of ten states can hardly be without its operation. . . . After 
New York shall have acted, then only one little state shall remain.” 

Washington to John Jay, July 18, 1788: “The accession of ten 
states must operate forcibly with the opposition,” etc. 

Washington to Madison (in congress), August 3, 1788 : . . The 

several parts should submit to the inconveniences, for the benefits 
they derive from the conveniences of the coipjpact. . . . Toward New 
York we look for whatever is interesting, till the states begin to act 
under the new form, which will be an important epoch in the 
annals of this country.” Note that “the states” are “to act under 
the new form.” 

Washington to Sir Edward Newenham, July 20, 1788, speaks of 
our having formed “ a confederated government, where due energy 
will not be incompatible with the inalienable rights of freemen.” 

Washington to Benjamin Lincoln, October 26, 1788 : “ The constant 
report is that North Carolina will soon accede to the new union.” 

He further says : “Whoever shall be found to enjoy the confidence 
of the states, so far as to be elected Vice-President, will be acceptable 
to me, should I be President.” 

We see from the above extracts that Washington constantly recog¬ 
nized the absolute states of Massachusetts, New York, Pennsylvania, 
Virginia and others, as the high contracting powers then forming the 
federal (or, to coin an English synonym, the league-al) constitution. 
His idea was that the states were associating themselves, to act thence¬ 
forward as a union of states (as the constitution repeatedly calls the 
polity formed), or a “ confederacy,” which was his own name for the 
new system. 

As the other fathers did, he often used the general phrase “the 
people,” meaning all the people of the country; but it is equally true 
that he and they meant “ the people ” as organized. They (the said 
people) "were organized only in states, and they had capacity for po¬ 
litical action only as such. They were not organized as a nation, and 
they could not politically act as such, for they must act according to 
the law of their political being. Moreover, there is no record of any 
national action whatever in forming or adopting the constitution. 


CHAPTER XI. 


WASHINGTON’S POLITICAL FAITH (CONTINUED). 

HE foregoing views of the Father of his Country on the consti- 



X tution were expressed before he became President. They may 
be styled his contemporaneous exposition of the polity then being 
established. His evidence is of the highest character. 

The present chapter, which I equally value, but do not offer as tes¬ 
timony, consists of his expressions after becoming President, and is a 
most precious legacy of wisdom to his countrymen. In the process 
of administering the federal polity, he closely observed and deeply 
studied its character and workings; and in all he said and w r rote, he 
treated of the system as a union of republics, the motives of w T hich 
are amity and mutual interest, and the purposes of which are “ the 
common defence,” “the general welfare,” and the security of “the 
blessings of liberty.” 

Moreover, he not only called the -system “ the new' confederacy,” and 
the states “the members of the union,” but he regarded the consti¬ 
tution as establishing the only relations between the states, and the 
said states as the sole actors in the union, and the exclusive sources 
of political power. The truth is, Washington and the rest of the 
fathers thought that, as all the territory and all the people belonged 
exclusively to the states, any general constitution must be made by 
them, must belong to them, must provide for their union, and must be 
w r orked for their benefit and with their authority. The country was 
theirs, and the government their servant, just as much as his house¬ 
hold belonged to him, and the domestics of it were under his control. 
He and they evidently assumed that all rights were state rights, all 
citizens state citizens, all sovereignty state sovereignty, all allegiance 
state allegiance, and all treason state treason! 

These ideas may seem strange to some; but I believe Washington, 
so far as he thought of them, took them for granted,, and never wrote 
an inconsistent word. But let us proceed with his record, remember¬ 
ing that, after the inauguration of the government, his testimony is 
from better insight, and against his interest and his possible love 
of power. 


232 


FALLACIOUS EXPOSITION. 


Washington to Jefferson, February 13, 1789, speaks of “the meas¬ 
ures taken by the different states for carrying the new government 
into execution.” 

Washington to Innes, March 2, 1789, speaks severely of “those 
who, by sowing the seeds of disaffection, may attempt to separate any 
portion of the united states from the union.” 

Washington to Governor Johnston, of North Carolina, June 19, 1789, 
speaks of the probability of North Carolina “speedily acceding to the 
new general government,” and of the “ subject of the most momentous, 
consequence ” to be dealt with by the North Carolina convention. “ I 
mean,” says he, “ the political relation which is to subsist hereafter,, 
between the state of North Carolina and the states now in union, 
under the new general government.” Mark these last words. 

Washington to Gouverneur Morris, 1789 : “ . . . The national gov¬ 
ernment is organized; . . . opposition to it is no more, or hides its 
head; ... it is hoped it will take strong root, and that the non¬ 
acceding states will soon become members of the union.” 

Washington to Edmund Randolph, Attorney-General, February 11, 
1790, speaks of an act which must “be passed to extend the judicial 
power of the united states, to North Carolina.” 

Washington to Fenner, governor of Rhode Island, June 14, 1790, 
congratulates him on the “ ratification of the constitution by the con¬ 
vention of Rhode Island,” and continues : “ Having now attained the 
desirable object of uniting, under one general government, all those 
states which were originally confederated,” etc., he then says, “ our 
bond of union is now complete, and we are once more as one 
family.” 

Washington to Count De Segur, July 1, 1790: “The union of 
states is now complete, under the new government, by the late acces¬ 
sion of Rhode Island to the constitution.” 

Washington, commissioning the Secretary of the Treasury to borrow 
money, August 28, 1790, authorizes him “to borrow on behalf of the 
- united states, within said states or elsewhere,” $14,000,000, “and to 
make such contracts as shall be necessary and for the interest of the 
said states.” 

Dr. David Stuart writes to Washington, March 10, 1792 : — 

“ A spirit of jealousy, which may become dangerous to the union, 
toward the Eastern states, seems to be growing fast. It is repre¬ 
sented that the northern phalanx is so firmly united as to bear down 
all opposition, while Virginia is unsupported, even by those whose 
interests are similar to hers.” 

Washington replied, March 20, 1792 : “I am sorry such jealousies 
as you speak of should be gaining ground and poisoning the minds 


WASHINGTON’S POLITICAL FAITH (CONTINUED). 233 

of the Southern people.” He then goes on to speak of diversities of 
interests and feelings between sections and parts of states and even 
counties. “Yet,” said he, “it did not follow that separation was to 
result from the disagreement. To constitute a dispute, there must 
be two parties. To understand it well, both parties and all the cir¬ 
cumstances must be fully heard; and to accommodate differences, 
temper and mutual forbearance are requisite. Common danger 
brought the states into confederacy, and on their union our safety 
and importance depend. A spirit of accommodation was the basis of 
the present constitution. Can it be expected, then, that the Southern 
or Eastern parts of the empire will succeed in all their measures 'l ” 
He then speaks of the unity or concert of Eastern states being likely 
to make them generally successful, and asks the question, “If the 
Eastern and Northern states are dangerous in union [italics his own], 
will they be less so in separation 1 If self-interest is their governing 
principle, will it forsake them, or be governed by such an event 1 . . . 
Then, independently of other considerations, what could Virginia, 
and such other states as might be inclined to join her, gain by a 
separation 1 ” 

Washington to Hamilton, July 29, 1792 : — 

He enumerates the objections taken to the policy of the government 
and the interpretations of the constitution, one of which is character¬ 
ized as a disposition evinced by a certain faction to disregard the 
“ limitations imposed by the constitution on the general legislature, 
— limitations on the faith of which the states acceded to that instru¬ 
ment.” 

Washington to Hamilton, August 26, 1792: He counsels mutual 
forbearance, conciliation, accommodation, “ and such healing measures 
as may restore harmony to the discordant members of the union, and 
the governing powers of it.” “Without these, I do not see how 
the union of the states can much longer be preserved.” 

Washington to Gouverneur Morris, October 20, 1792 : — 

Speaks of the Indians being under “ an influence [British] which is 
hostile to the rising greatness of these states.” 

And his letter to the Earl of Buchan, of April 22, 1793, hereto¬ 
fore quoted, shows how completely he was governed by the idea of 
distinct and sovereign 'political bodies self-united : “ I send you the plan 
of a new city about the centre of the union of these states. 

To any reflecting mind, the last five letters, as well as numerous 
other expressions, show that Washington not only regarded the union 
of states as purely voluntary, and motived by a community of political 
faith and sentiment, by amity, and by the mutual interest of safety, 
economy, and means of wealth and power, but that he thought the 


234 


FALLACIOUS EXPOSITION. 


constitution defective, experimental, and dissoluble. [See his letters 
to Gen. Knox and Gen. Lafayette, in August and September, 1787; 
also the above quoted one of September 24, 1787, to Patrick Henry, 
and others. Nay, more, he recognized motives or causes tending to 
separation as likely to arise, and he adjured “the people of these 
states,” who, as commonwealths, had formed “the confederacy,” as 
he called it, to be conciliatory and compromising, and to frown down 
all attempts to cause a separation of the states. 

The following letters and extracts, from the Farewell Address, 
show that he considered good will and mutual interest as the only 
ties binding the states, and moral suasion as the only force to be 
relied on to prevent the sundering of those ties. This must be so, 
for the convention of 1787, including him, unanimously spurned the 
idea of coercion of states; and subsequently the states, nem. con., 
amended the constitution to prevent even judicial coercion of states. 
[See Amendment XL] The fathers all thought the states only bound 
by virtue of voluntary engagements; and, to use the language of 
Webster at the close of his life, that “the constitution is the only 
bond of the union of these states.” 

Washington to R H. Lee, August 22, 1785 : — 

“ There is nothing which binds one country or state to another but 
interest. Without this cement, the Western inhabitants can have 
no predilection for us, and a commercial connection is the only tie we 
can have upon them.” He was speaking of the people of the Ohio 
and Mississippi valleys. 

Washington to R H. Lee, July 19, 1787: — 

“ Till you get low down the Ohio, I conceive that it would be the 
interest of the inhabitants thereof to bring their produce to our ports; 
and sure I am there is no other tie by which they will long form a 
link in the chain of federal union.” 

Extracts from Washington’s Farewell Address, with explana¬ 
tions. It is well to remark at the outset that there is no inconsistency 
between the address and the extracts heretofore given. To promote 
“ the happiness of the people of these states,” is the professed object he 
has in view; and he regards the motives.of amity, fraternal feeling, 
and mutual interest “ as the sacred ties which bind together the vari¬ 
ous parts.” And the presumption is inevitable that, if he had fore¬ 
seen that fraternal feeling would give place to* mutual dislike, and 
amity to enmity, he would have recommended separation as preferable 
to bitter contentions, and the unrepublican disposition to settle dis¬ 
putes by arms; and he would have advised resort to the divine idea of 
secession, as expressed by Abraham to Lot; and surely that could not 
have been so bad as the great American civil war, — the curse of the 


WASHINGTON’S POLITICAL FAITH (CONTINUED). 235 


nation and the infamy of the age ! He never contemplated a union 
of force, — a union to be preserved by coercion of the component 
states, — and not a line he ever wrote (even in the farewell address) 
is consistent with such an idea. The italics will be mainly mine. 

In the beginning of the address, he prays “ that Heaven may con¬ 
tinue to you the choicest tokens of its beneficence; that your union 
and brotherly affection may be perpetual; that the free constitution , 
which is the work of your hands , may be sacredly maintained ; that its 
administration in every department may be stamped with wisdom and 
virtue; that, in fine, the happiness of the people of these states , under 
the auspices of liberty, may be made complete. 

“ The unity of government, w T hich constitutes you one people, is 
also now dear to you. It is justly so; for it is a main pillar in the 
edifice of your real independence, — the support of your tranquillity 
at home, your peace abroad, of your safety, of your prosperity, of that 
very liberty which you so highly prize. But as it is easy to foresee 
that, from different causes and from different quarters, much pains 
will be taken, many artifices employed, to weaken in your minds the 
conviction of this truth, as this is the point in your political fortress 
against which the batteries of internal and external enemies will be 
most constantly and actively (though often covertly and insidiously) 
directed, it is of infinite moment that you should properly estimate 
the immense value of your national union, to your collective and indi¬ 
vidual happiness.” 

He is addressing “ the people of these states,” and “ the government ” 
— the “ unity ” of which, he says, is so dear to them — is the govern¬ 
ment which they made, acting as states, and which necessarily remains 
subject to the wills that gave it existence. This is an argument to 
the people of states, who, in imparting or withdrawing power, must 
act according to the law of their political being, as states. We have 
heretofore seen his repeated assertions that the union is a u con¬ 
federacy.” 

“ While, then, every part of our country thus feels an immediate 
and particular interest in union, all the parts combined cannot fail to 
find, in the united mass of means and efforts, greater strength, greater 
resource, proportionably greater security from external danger, a less 
frequent interruption of their peace by foreign nations; and, what is of 
inestimable value, they must derive from union an exemption from 
those broils and wars between themselves, which so frequently afflict 
neighboring countries not tied together by the same government, which 
their own rivalships alone would be sufficient to produce, but which 
opposite foreign alliances, attachments, and intrigues would stimulate 
and embitter. Hence, likewise, they will avoid the necessity of those 


236 


FALLACIOUS EXPOSITION. 


overgrown military establishments, which, under any form of govern¬ 
ment, are inauspicious to liberty, and which are to be regarded as 
particularly hostile to republican liberty; in this sense it is that 
your union ought to be considered as a main prop of your liberty, 
and that the love of the one, ought to endear to you the preservation 
of the other. 

“ These considerations speak a persuasive language to every reflect¬ 
ing and virtuous mind, and exhihit the continuance of the union as a 
primary object of patriotic desire. Is there a doubt whether a com¬ 
mon government can embrace so large a sphere ? Let experience solve 
it. To listen to mere speculation in such a case were criminal. We 
are authorized to hope that a proper organization of the whole, with 
the auxiliary agency of governments for the respective subdivisions, 
will afford a happy issue to the experiment. It is well worth a fair 
and full experiment. With such powerful and obvious motives to 
union, affecting all parts of our country, while experience shall not 
have demonstrated its impracticability, there will always be reason to 
distrust the patriotism of those who, in any quarter, may endeavor to 
weaken its bands.” 

Of course “ the continuance of the union ” was “ the primary ob¬ 
ject of patriotic desire,” as long as it was the instrument of “the 
people of these states,” in preserving their safety and happiness, and 
as long as its government was the servitor of said people. But the 
above shows that it was undoubtedly Washington’s view, that if a full 
and fair experiment proved that this “ common government ” could 
not “ embrace so large a sphere ” without defeating, instead of pro¬ 
moting, the object of government, i.e. “the happiness of the people 
of these states,” it might, by its makers, be brought to an end, hav¬ 
ing no iron strength and eternal existence of its own, but only exist¬ 
ing at the will of its sovereign creators. 

“ To the efficacy and permanency of your union, a government for 
the whole is indispensable. No alliance, however strict, between the 
parts can be an adequate substitute ; they must inevitably experience 
the infractions and interruptions which all alliances in all time have 
experienced. Sensible of this momentous truth, you have improved 
upon your first essay, by the adoption of a constitution of government 
better calculated than your former for an intimate union, and for the 
efficacious management of your common concerns. This government, the 
offspring of your own choice, uninfluenced and unawed, adopted upon 
full investigation and mature deliberation, completely free in its prin¬ 
ciples, and in the distribution of its powers, uniting security with 
energy, and containing within itself a provision for its own amend¬ 
ment, has a just claim to your confidence and your support. Respect 


WASHINGTON’S POLITICAL FAITH (CONTINUED). 237 


for its authority, compliance with its laws, acquiescence in its 
measures, are duties enjoined by the fundamental maxims of true 
liberty.” 

In this quotation we have further positive proof that Washington 
did not consider that there was “ a change from a confederation to 
another system; ” for, in the passage underscored, he regards the con¬ 
stitution as another compact, and the new system as a union of states, 
as the constitution calls it, — “a more perfect union ” of the states, 
as the preamble expresses it. “ This government ” is the offspring of 
our “ own choice.” Whose choice ? Whose will is referred to 1 Of 
course “ the people of these states.” They were only organized and 
capable of acting as states. They did act absolutely as states. Of 
course, then, Washington could but say, as he did in his letter here¬ 
tofore quoted, of October 17, 1787, that the constitution was a “ com¬ 
pact or treaty ; ” and as he did in his letter, also heretofore quoted, of 
June 28, 1788, that the system proposed was “a new confederacy,” 
that is to say, a new league of states, — a “ more perfect union.” 
Who will now deny that Washington considered “the united states of 
America” a federation of sovereignties'? 

His political principles were those of Wilson, Dickinson, Hamilton, 
Madison, Jay, and other leading federalists, who most elaborately 
explained the new federal system to the people. This is well known 
by all who understand the subject; but to prevent cavil and evasion, 
I will show his special adoption of their theory of the absolute sove¬ 
reignty of the states in the union. 

Washington to David Stuart, October 17, 1787: “Dear Sir, — As 
the enclosed Advertiser contains a speech of Mr. Wilson, as able, candid, 
and honest a member as was in the convention, which will place the 
most of Colonel Mason’s objections in their true light, I send it to you. 
The republication of it, if you can get it done, will be serviceable at 
this juncture.” 

The leading and most striking parts of this speech were as follows: 
In showing that a bill of rights was not needed in the federal consti¬ 
tution, because not being given, the said rights were reserved already, 
he said : “It would have been superfluous and absurd to have stipu¬ 
lated with a federal body of our own creation, that we should enjoy 
those privileges of which we are not divested, either by the intention 
or the act which has brought that body into existence.” 

Further along, he said, in explaining the reason why the federal con¬ 
vention did not deal with subjects already provided for in the state 
constitutions : “ Let it be remembered, then, that the business of the 
federal convention was not local, but general; not limited to the 
views and establishments of a single state, but co-extensive with 


238 


FALLACIOUS EXPOSITION. 


the continent, and comprehending the views and establishments of 
thirteen independent sovereignties' ’ [Pennsylvania Herald, Oct. 10, 
1787.] 

Another Pennsylvania statesman, Tench Coxe, said at the same 
time, on the same matter, that such subjects “could not be mentioned 
in a contract among sovereign states.” 

The above were unquestionably the views of Washington : and 
strange as it may seem to those who have been taught by Story and 
Webster, the fathers took them for granted, and acted upon them; 
and the federal constitution is entirely based upon the principles of 
them; and in those days neither friend nor foe ever called them in 
question. 

Washington to John Vaughan, April 27, 1788 : “The writer of the 
pieces signed Fabius, whoever he is, appears to be master of the sub¬ 
ject ; ... an extensive republication of them would be of utility, in 
removing false impressions.” 

Fabius was John Dickinson, who had been President of both Penn¬ 
sylvania and Delaware. He was a member of the federal convention, 
and was recognized as one of the leading statesmen of that period. 
What were the views, evincing “ mastery of the subject; ” worthy of 
“ extensive republication,” as well as calculated to “remove false im¬ 
pressions!” The following extracts from II. “Political Writings of 
John Dickinson,” will show. The italics are in the original. 

Speaking of the danger to liberty, in the new system, he says, 
writing early in 1788 : “ the power of the people , pervading the whole 
system, by frequent elections, together with the strong confederation 
of the states , forms an adequate security against every danger that has 
been apprehended.” “ The objectors agree that the confederation of 
the states will be strong , according to the system proposed,” etc. 

“ They [the House of Representatives], and the Senate , will actually 
be, not only legislative , but also diplomatic bodies, perpetually engaged 
in the arduous task of reconciling in their determinations, the inter¬ 
ests of several sovereign states.” 

Speaking of the danger of usurpation by the federal government, 
he says, “the trustees or servants of the several states will not dare, 
if they retain their senses, to violate the independent sovereignty of 
their respective states, that justly darling object of American 
affection, to which they are responsible. But a bad administration 
may take place ; what is then to be done! The answer is instantly 
found : Let the fasces be lowered before the supreme sovereignty of the 
people. It is their duty to watch , and their right to take care that the 
constitution be preserved; or in the Roman phrase, on perilous occa¬ 
sions, to provide that the republic receive no damage. ” 


WASHINGTON’S POLITICAL FAITH (CONTINUED). 239 


“ It is said such territory has never been governed by a confed¬ 
eracy of republics; granted; but where was there ever a confederacy 
of republics in such territory, united, as these states are to be, by the 
proposed constitution 1 ” etc. 

“ America is, and will be, divided into several sovereign states, each 
possessing every power proper for governing, within its own limits, for 
its own purposes, and also for acting as a member of the union” 

I have quoted copiously, as John Dickinson’s writings are not acces¬ 
sible to many, and as they show Washington’s views very clearly and 
forcibly. 

Let us now show his approval of the Federalist, and then quote its 
expressions : — 

Washington to David Stuart, November 30, 1787 : — 

After stating that “ some writers wish to see this union divided 
into several confederacies,” and deprecating the idea, he writes as 
follows: — 

“ As an antidote to these opinions, and, in order to investigate the 
ground of objections to the constitution which is submitted, the Fed¬ 
eralist, under the signature of Publius, is written. . . . They [the 
articles] are written by able men, and before they are finished, will, 
or I am mistaken, place matters in a true point of light. Although 
I am acquainted with the writers, I am not at liberty to mention 
names; nor would I have it known that they [these papers] are sent 
by me to you for promulgation.” 

He was in the confidence of the writers; he and they were ardent 
federalists ; and they concurred with him in political philosophy. He 
often specially sanctioned what they wrote ; aided in the “ promulga¬ 
tion ” of their writings; and in his subsequent administration of the 
new governmental agency, he was in close alliance and sympathy with 
them, personally and politically. 

What then did Jay, Hamilton, and Madison write, in expression of 
their own and Washington’s views, concerning the proposed general 
polity 1 

The very first article of the Federalist indicated the object to be, 
the continuance of the union of states, under a new federal government; 
or, as the constitution expresses it, “ to form a more perfect union.” 
And, in that, and the two or three articles immediately following, the 
question is discussed whether there should be an association of states 
or not, and if yea, whether “ three or four confederacies would be 
better than one.” This is Jay’s expression, and he elsewhere called 
the polity a “union of states” and a “confederacy. ’ 

In concluding the great discussion, Hamilton states, in 85 of the 
Federalist, that, by the compact proposed, “thirteen independent 


240 


FALLACIOUS EXPOSITION. 


states were to be accommodated in their interests, or opinions of 
interest; ” and that hence arose the necessity of making such a sys¬ 
tem, as would “ satisfy all the parties to the compact.” And, in the 
same article, he argues that the failure of this plan would be a 
“dissolution of the confederacy.” And in the New York ratifying 
convention, about the same time, he described the system provided 
for in the proposed constitution, as “ a confederacy of states .” [II. Ell. 
Deb. 353.] 

In Article 39, it is stated that “each state, in ratifying the consti¬ 
tution, is considered as a sovereign body, independent of all others, 
and only to be bound by its own voluntary act. In this relation, 
then, the new constitution will, if established, be a federal , and not a 
national constitution.” This is Madison’s, italics and all. 

In Article 40 Madison continues the subject, meeting the objection 
that the new system was so different from the preceding one, that it 
was not within the intention of the states : “ Will it be said that the 
fundamental principles of the confederation were not within the pur¬ 
view of the convention, and ought not to have been varied ? I ask, 
what are those principles ? Do they require that, in the establish¬ 
ment of the constitution, the states should be regarded as distinct 
and independent sovereigns'? They are so regarded by the constitu¬ 
tion proposed.” 

Article 20 — the joint production of Hamilton and Madison — 
concludes with the following remarkable and decisive passage : “ Ex¬ 
perience is the oracle of truth; and where its responses are unequivo¬ 
cal, they ought to be conclusive and sacred. The important truth 
which it unequivocally pronounces in the present case is, that a sove¬ 
reignty over sovereigns, a government over governments, a legisla¬ 
tion for communities as contradistinguished from individuals; as it is 
a solecism in theory, so in practice it is subversive of the order and 
ends of civil polity, by substituting violence in the place of law; or 
the destructive coercion of the sword , in the place of the mild and 
salutary coercion of the magistracy .” 

All the numbers of the Federalist, and all of Washington’s writ¬ 
ings, are consistent with the above passages. The extract from 
Article 20 is one of the numerous decisive proofs that the states were 
never intended to be subject to the government; for they were the 
sources of all power — were republics, i. e. self-governing states. A n d 
it is amazing that anybody should ever have been inconsiderate or 
wicked enough to say that the states are subject to their own com¬ 
pact, and the government they created by it. Yea, verily, it is a 
solecism, as Hamilton and Madison above say, to talk of “a sove- 
reignty over sovereigns, a government over governments, a legislation 


WASHINGTON’S POLITICAL FAITH (CONTINUED). 241 


for communities as contradistinguished from individuals.” And it 
shows either ignorance of history, or suppressio veri, for expositors of 
the constitution to deny that the states purposely excluded coercion 
of states from the compact; and afterwards nem. con., provided by 
Amendment XI. against even judicial federal coercion of them. 

W e find, then, from Washington’s own expressions, his views to 
have been that the states “ established ” the union; that the instru¬ 
ment providing for it is the “ compact or treaty” of the states ; that the 
object accomplished was the forming of “a new confederacy ,” i. e. 
“ a more perfect union ” of the states, than the previous pact pro¬ 
vided for; and that the states were not only voluntary parties to, but 
they were to be voluntary actors in, the union. 

Washington always took it for granted, that the states were sove¬ 
reign bodies of people; and that the federal compact, and the agency 
created, were simply the instrumentalities of the states for self-gov¬ 
ernment, and remained of course subordinate to them. 

Now, in order to see Washington’s clearness and breadth of view, 
and his admirable consistency throughout, let us glance back at his 
statement of the great political desiderata for our country, in his cir¬ 
cular letter to the governors of the states in 1783, on the occasion of 
his laying down his office as Commander-in-Chief: — 

1. A “union of the states under one federal head.” 

2. A “sacred regard for public justice.” 

3. A proper peace establishment. 

4. The cultivation of friendly feelings among all the people of the 
country, etc. 

Washington never lost sight of these objects; he always took it for 
granted that the states were the sole actors in federalizing themselves; 
and he finally had the satisfaction to see the work done precisely as 
he forecasted. An extract from his confidential letter to “Brother 
Jonathan” Trumbull, dated July 20, 1788, after the Union was com¬ 
pleted, decisively proves that he contemplated a continuance of abso¬ 
lute statehood in the union (the italics are mine) : “. . . We may, 
with a kind of pious and grateful exultation, trace the finger of Provi¬ 
dence through those dark and mysterious events which first induced 
the states to appoint a general convention, and then led them, one after 
another, by such means as were best calculated to effect the object, 
into an adoption of the system recommended by that general convention .” 
[Washington’s Writings, Vol. XI.] The thoughtful reader .cannot 
fail to see that Washington was much more admirable as a statesman 
and political philosopher, than is commonly supposed. 

16 


CHAPTER XII. 


VERBAL JUGGLERY. 


FTER contrasting the doctrines of “ the two Washingtons,” it is 



well to bring to view, in the same line of investigation, the two 
sets of so-called definitions of Noah Webster, as to the matter in hand, 
— one genuine and the other counterfeit. 

With sapping and mining industry, equal to that of a species of 
rodent vermin, and quite as difficult to follow and counteract, a cer¬ 
tain class of teachers and leaders have undermined to its ruin the 
sacred temple of. constitutional freedom. Unfortunately they and their 
disciples or followers mainly control the political propagators, print, 
press, publishers, politicians, and, in short, the most of the means of 
political teaching in the whole land. 

Strategic Exposition.— In 1830-3, Daniel Webster abandoned 
his previous and sound constitutional views; and he is charged with 
having, in the great controversy of that time, played most skilfully 
“ with double sences and with false debate.” But I presume that his 
errors were a part of his faith, and that his incorrect facts and un¬ 
sound premises were based upon the data furnished him by others. 
At all events — standing on the plane of his noble efforts in behalf of 
the union — we go down a steep and long declivity to reach the artifices 
now to be exposed. 

Said he, in his speech of 1833, “Words are things ... of mighty 
influence; because a just conclusion is often avoided, or a false one 
reached, by the adroit substitution of one phrase or one word [or he 
might have said one definition] for another.” He evidently saw that 
even the strongest logical position in any argument could be turned, 
by changing the definitions of the chief words of it, and having them 
accepted as “ public convictions.” 

And a minority politician, in the early part of the present century, 
is said to have remarked, in substance : “ The terms are against us, 
but their meanings are subject to usage.” Sophists seem to have 


VERBAL JUGGLERY. 


243 


accepted these hints, and labored assiduously ever since to produce a 
desired usage, and a “ public conviction ” of new and false meanings, 
tending towards, if not powerfully aiding, consolidation and imperial¬ 
ism. Many an “ adroit substitution ” has since, with flagitious cun¬ 
ning, been made, — the latest, most conspicuous, and most banefully 
influential being the counterfeit definitions, which are the subject of 
this chapter, and which are coined and circulated throughout the land 
as Noah Webster’s. 

Phrasing the process to be exposed, as I do above, is dignifying it ; 
for it is the appending of Noah Webster’s most venerated and poten¬ 
tial name to declarations of fact and opinion, directly and flagrantly 
opposed to his life-long views, and “ passing the counterfeits ” as his 
statements. 

We early learn the meanings of the leading words, which affect all 
the affairs of life. They are often of vital moment. If, after putting 
our rights in language, we find the definitions of our words changed, 
we may suffer great wrong without remedy. The discovery may 
sometimes amuse us,— much as “ thimble-rig ” would, — but we must 
ever have the bitter reflection that this sapping and mining process 
affects alike our language and our polity, and that the poison of error 
is imbibed as truth by the generation to which we owe the supreme 
duty of teaching sound principles, and the sacred verities of our .con¬ 
stitutional freedom. 

The American “ Old Man of the Mountain.” — If the “ school ” 
is responsible for the foregoing deceptions, and the sophistries yet to 
be exposed, have we not found the American “ Sheik al Gebel,” — the 
“ Chief of the Assassins ” of liberty 1 The honor and conscience of 
perverters in general are estimated, and the character of them por¬ 
trayed by Gouverneur Morris, the statesman, as follows : “ But, after 
all, what does it signify that men should have a written constitution, 
containing unequivocal provisions and limitations. The legislative 
lion will not be entangled in a logical net. The legislature will always 
make the power which it wishes to exercise. . . . The idea of binding 
the members by oaths is puerile. Having sworn to exercise the powers 
granted, according to their true intent and meaning, they will, when 
they desire to go further, avoid the shame, if not the guilt, of perjury, 
by swearing the true intent and meaning to be (according to their 
comprehension) that which suits their purpose.” [III. Life of Morris, 
letter dated Dec. 22, 1814.] 

Noah Webster’s real Doctrines. — Noah Webster died in 1843, 
aged eighty-five, after having attained the first rank of great Ameri¬ 
cans. He was one of the ablest and most efficient of those eminent 
patriots called “ the fathers,” who devised the new federal system and 


244 


FALLACIOUS EXPOSITION. 


secured its adoption. In 1784-5, he wrote and published his “Sketches 
of American Policy,” advocating a general government that should 
act, not on states, but directly on individuals, just as the state govern¬ 
ments did, and should possess powers to effectuate its laws in like 
manner. When the federal system of 1787 was devised, he published 
in its favor “ An Examination of the Leading Principles of the Federal 
Constitution,” and in the American Magazine, founded and edited 
by him in 1787-8, he monthly and most ably exposed the essential 
ideas and traits of the system. I now present some extracts, not only 
to show the deceptions referred to, but to instruct the people as to 
their real federal polity, and exhibit to them, in compendious form, 
this great man’s abiding political faith. “ The whole body of people 
in society is the sovereign power or the state, which is called the body- 
politic. Every man forms a part of this state, and so has a share in 
the sovereignty; at the same time, as an individual, he is a subject of 
the state.” [Am. Mag. Dec. 1787.] 

The States above Constitutions of Government. — “ The indi¬ 
viduals who compose a political society or state, have a sovereign right 
to establish what form of government they please in their own terri¬ 
tory.” [Ibid.] 

In the number for January, 1788, he said : “. . . No constitutions 
in a free government can be unalterable. ... A state is a supreme 
corporation that never dies. Its powers, when it acts for itself, are at 
all times equally extensive, and it has the same right to repeal a law 
this year as it had to make it the last. If, therefore, our posterity are 
bound by our constitutions, and can neither amend nor annul them, 
they are to all intents and purposes our slaves. ... We have no 
right to say that our posterity shall not be judges of their own cir¬ 
cumstances. The very attempt to make perpetual constitutions is 
the assumption of the right to control the opinions of future genera¬ 
tions, and to legislate for those over whom we have as little authority 
as we have over a nation in Asia.” 

The Aim is to preserve the States complete. — He said in reply 
to objections, that “ the federal constitution will preserve our equal 
republican forms of government; nay, that it is their only firm sup¬ 
port, and the guaranty of their existence.” [Ibid.] 

The object universally held in view was the preserving of the states 
intact; and numerous quotations of similar tenor to the following, from 
Chancellor Livingston, in the New York ratifying convention, could 
be quoted : “ Our existence as a state depends on a strong and efficient 
federal government.” 

Just so Noah Webster considered the absolute preservation of the 
states to be the object of their union, as will be seen in the following 


VERBAL JUGGLERY. 


245 


extract from his aforesaid “Examination,” etc. The italics are his. 
“ The states, in their separate capacity, cannot provide for the common 
defence; nay, in case of a civil war, a state cannot secure its own 
existence.” He continues that it is necessary for them “ to unite and 
provide for the common defence and general welfare,” and that hence 
“ a power over the whole united states, adequate to these general pur¬ 
poses,” should be constituted. “ But,” continued he, “ the states, by 
granting such power, do not throw it out of their own hands; they only 
throw each its proportion into a common stock; they merely combine 
the powers of the several states into one point, where they must be 
collected before they can be exerted. But the powers are still in 
their own hands, and cannot be alienated till they create a body inde¬ 
pendent of themselves, with a force at its command superior to the 
whole yeomanry of the country.” [New Haven Gazette, Nov. 29/ 
1787.] 

As to the equality and supremacy of the states in the union, he 
said, in the first number : “ The equality of representation, which was 
the result of compromise and mutual concessions, establishes the equal 
sovereignty of each state.” [Am. Mag., Dec. 1787.] 

In showing that a bill of rights was not needed in the federal con¬ 
stitution, he said : “ A bill of rights against the encroachments of kings 
and barons, or against any power independent of the people, is perfectly 
intelligible; but a bill of rights against the encroachments of an elec¬ 
tive legislature, that is, against our own encroachments on ourselves, 
is a curiosity in government.” [Ibid.] In other words, we want no 
bill of rights from an agency we have created, and that has neither 
existence nor power that we do not give to it, as such agency, to use 
for us. 

Electees and Agents. — Noah Webster, in common with all the 
fathers, regarded all federal officials (i. e. the whole federal government) 
as electees and agents of the states. 

In a later number than the last mentioned, in reviewing the papers 
of the Federalist, then currently appearing, he spoke of the election 
of representatives by the separate people of the states; of each state 
endowing its own voters; of the appointment of senators by the state 
legislatures ; and of the appointment, by the states , of electors for the 
President. 

In February, 1788, he wrote that “the representative of a people 
is, as to his powers, in the situation of an attorney, whose letters com¬ 
mission him to do everything which his constituent could, were he on 
the spot.” 

A Compact and a Constitution.— The federal instrument in¬ 
volves a compact , because it has the assent of several wills, and a 


246 


FALLACIOUS EXPOSITION. 


constitution of government, because it provides for constituting or 
establishing and empowering the said government. In a subsequent 
number, he cited Montesquieu’s admission to prove that <£ a confedera¬ 
tion of republics may be so formed as to unite the happiness of free 
states with the vigor of monarchies. The new constitution may be 
an improvement on the Lycian league , which that writer proposes as a 
model.” 

And he quotes and agrees with Hamilton, in number 85 of the 
Federalist, that, in forming a “ constitution of the united states,” 
“ thirteen independent states are to be accommodated in their interests 
or opinions of interest,” “ in such a manner as to satisfy all the parties 
to the compact .” 

He, like Washington, Livingston, Hamilton, Madison, and all the 
leading fathers, considered that a league of states was being formed by 
the federal instrument; that they were to govern themselves as re¬ 
publics ; that their federal agency was to have no unwritten powers ; 
and that they were to keep all they did not express; and in the sub¬ 
sequent numbers, he publishes the states’ approvals and ratifications, 
that made them a “ union of states,” or “ united states,” as they called 
themselves. 

Noah Webster never changed. — In these views, he was con¬ 
sistent through a life spent in profound study of such subjects, — 
i. e. for more than fifty years. All his definitions precisely conform to 
them. The American people and all coming generations could, in his 
great dictionary, learn not only the true meaning of all the “ mighty 
words ” in which American political history and philosophy, the con¬ 
stitution and the debates on it, were written, but the true exposition 
of that institutional freedom which was the peculiar boast and pride 
of the leagued or associated states or peoples of America. 

The “Adroit Substitutions” in Webster’s Dictionary. — With 
much painstaking and ingenuity, false definitions have been coined 
and substituted for those of Noah Webster, as to all the important 
political and constitutional words of his dictionary. In contrasting 
the true with the false, the former will be those of 1844, the year 
after his death, and the latter those of 1864. The first column will 
exhibit the correct and beautiful theory, as held by all the fathers, 
of the American sisterhood of states,—that association of “ moral 
persons,” who agreed, for strength, safety, convenience, economy, and 
united wisdom, to join their authority, intellects, wills, and power, in 
federal self-government; while the other shows the double fraud of 
representing the united states to be a state, the states to be counties 
or provinces, and the vicarious government to be a sovereign with ab¬ 
solute supremacy; and ascribing such wickedness and folly to the 


VERBAL JUGGLERY. 


247 


revered lexicographer, all of whose writings and definitions, through 
a long life, give to such theory direct contradiction. The italics will 
mainly be my own. 

Let us begin with the definition of 


SOVEREIGNTY. 


In the edition of 1844 it is as fol¬ 
lows : — 

“Sovereign, a. Supreme in pow¬ 
er ; possessing supreme dominion; 
as a sovereign prince. 

“ Sovereign, n. A supreme lord 
or ruler; one who possesses the high¬ 
est authority, without control. 

“ Sovereignty, n. Supreme pow¬ 
er ; supremacy ; the possession of 
the highest power, or of uncontrol¬ 
lable pow r er.” 


[Of course no material change of 
the definition of a superlative word 
could have been ventured on. The 
“ play with double sences,” however, 
will be seen in the frequent use of 
the word in the sense of government , 
as well as supreme political authority. 
As sovereignty is in “ the people,” it 
cannot be in the elected rulers.] 


Of course only sovereignties could compact in the premises, consti¬ 
tute government over their subjects, and delegate their powers to be 
used in ruling them. 

After the revolution, “ the people ” were the distinct bodies-politic, 
or “ moral persons,” who acted in every political movement. Their 
individuality and entireness of body, mind and will as commonwealths, 
must have continued till the end of their joint act of federation; and 
hence they could not be less than sovereign in the union. In asso¬ 
ciating, th^y earnestly and exclusively contemplated and sought self- 
preservation, and no sign of any consent to a change of character or 
authority is to be found anywhere. The sovereignties could but be 
the communities existing after , just as they did before , the general 
government was constituted. 

Let us now see the definitions of 1844 and 1864 in contrast. 


“state,” “commonwealth,” and “republic.” 

In the edition of 1844 is to be In the edition of 1864 is to be 
found the following : —‘ found the following : — 

“ State, n. A political body or “ State, n. In the United States 
body-politic : the whole body of the one of the commonwealths or bodies- 
people united under one government, politic, the people of which make up 
whatever may be the form of gov- the body of the nation , and which, 
ernment. 1 Municipal law is a rule under the national constitution, stand 
of conduct prescribed by the supreme, in certain specified relations with the 
power in a state.’ — Blackstone. More national government, and are in- 
usually, the word signifies a politi- vested as commonwealths, with full 


248 


FALLACIOUS EXPOSITION. 


cal body, governed by representa¬ 
tives ; a commonwealth, as the states 
of Greece ; the states of America.” 

“ Commonwealth n. An estab¬ 
lished form of government or civil 
polity ; or more generally a state ; 
a body-politic, consisting of a certain 
portion of men, united by compact, 
or tacit agreement, under one form of 
government and system of laws. A 
commonwealth is properly. a free 
state; a popular or representative 
government; a republic ; as the com¬ 
monwealth of Massachusetts. The 
word signifies, strictly, the common 
good or happiness ; and hence the 
form of government supposed best to 
secure the public good.” [It is fur¬ 
ther stated that the term is applied 
to Great Britain and other bodies- 
politic, whose forms of government 
are considered as free or popular.] 

In the same edition is the follow¬ 
ing: “Kepublic. n. A common¬ 
wealth ; a state,” etc. 

Noah Webster then makes no distinction between ours and foreign 
states. Neither does the constitution. [See Art. III., § 2, and 
Amendment XI.] A state, nation, or power is distinct in existence, 
independent in authority, and without a superior. If .one of our 
communities is a state at all, she is sovereign. If less than a state,' 
she is a county or province, and is remanded to colonial or provincial 
vassalage. Hence we see that Noah Webster, like all the fathers, 
teaches that the states are commonwealths, distinct, independent, and 
sovereign in mind and will; and he assumes that they could neither 
politically exist, nor politically act, in any other form, and hence that 
they could be associated only by a fcedus, and as a federation. Doubt¬ 
less he considered it as absurd to think of consolidating thirteen moral 
persons or states into one, as it would be to weld thirteen natural 
persons into a giant! 


power in their several spheres over 
all matters not expressly inhibited.” 

[The sophists who made up the 
edition of 1864, feeling responsible 
for the “ public convictions ” hereto¬ 
fore noticed, and perceiving that the 
former definitions of “state,” “com¬ 
monwealth” and “republic” exhib¬ 
ited the states as distinct bodies, not 
only in making the union, but in 
existence afterwards, and that the 
giving of “ Massachusetts ” and 
“ Great Britain ” as precisely similar 
instances, was fatal to the theory 
upon which the said “ public con¬ 
victions ” were based, carefully left 
out the instances, and changed such 
portions of the definitions as they 
thought militated against their the¬ 
ory.] 


COMPACT AND CONSTITUTION. 

In the edition of 1844 is the fol- In the edition of 1864 is the fol¬ 
lowing:— lowing: — 

“ Compact, n. An agreement; a “ Compact, n. An agreement be- 
contract between parties; a word tween parties; a covenant or con- 


VERBAL JUGGLERY. 


249 


that may be applied in a general 
sense to any covenant or contract 
between individuals ; but it is more 
generally applied to agreements be¬ 
tween nations and states, as treaties 
and confederacies. .So the constitu¬ 
tion of the United States is a 'political 
contract between the states ,” etc. 

“Constitution, n. The estab¬ 
lished form of government in a state, 
kingdom, or- country; a system of 
fundamental rules, principles, and 
ordinances for the government of a 
state or nation. In free states, the 
constitution is paramount to the stat¬ 
utes or laws enacted by the legis¬ 
lature, limiting and controlling its 
power ; and in the United States the 
legislature is created, and its powers 
designated by the constitution.” 


tract, either x>f individuals or of na¬ 
tions.” [The rest of the former 
definition is suppressed.] 


“Constitution, n. The princi¬ 
ples or fundamental laws which gov¬ 
ern a state, or other organized body 
of men, and are embodied in written 
documents, or implied in the institu¬ 
tions and usages of the country or 
society.” 


In the above two definitions, Noah Webster says the states are 
joined by their own wills, in “ a political contract between the states,” 
in which they constituted the government; that “ the legislature 
\i. e. congress] is created, and its powers designated, by the constitu¬ 
tion ; ” and that this “ constitution is paramount to the statutes or 
laws enacted by ” congress, and “ limits and controls its power.” 
Hence he teaches that “ the constitution of the * states,” and “ the 
government ” it constitutes, are subject to the states. Sufficient proof is 
found in the frauds here exposed, to show that the perverters them¬ 
selves understood his teachings so, did not dare to let them remain, 
and made the changes in the hope of deceiving “ the people.” 


DELEGATION AND DELEGATE. 


In the edition of 1844 is the fol¬ 
lowing : — 

“ Delegation, n. A sending 
away ; the act of putting in com¬ 
mission, or investing with authority 
to act for another; the appointment 
of a delegate. 2. The persons de¬ 
puted to act for another, or for others. 
Thus the representatives of Massa¬ 
chusetts in congress are called the 
delegation, or whole delegation. 


In the edition of 1864 is the fol¬ 
lowing : — 

“Delegation, n. ... 2. One 
or more persons deputed to represent 
others, as in a convention, in con¬ 
gress, etc.; as the delegation from 
Massachusetts.” 


250 


FALLACIOUS EXPOSITION. 


“ Delegate, v . t. To send away; 
appropriately to send on an embassy ; 
to send with power to transact busi¬ 
ness as a representative. 2. To en¬ 
trust ; to commit; to deliver to 
another’s care and exercise; as to 
delegate authority or power to an 
envoy, representative or judge.” 


[The definitions of these two words 
are not much changed, except in sup¬ 
pressing the truth, that the members 
of congress are “ the representatives of 
Massachusetts in congress.”] 


In these definitions, Noah Webster keeps republicanism in view; 
the republics, i. e. “ the people,” are to govern themselves through 
their agents, who, being their citizens, are their subjects and servants. 
These are the government, and the powers they as rulers wield, must 
be “ delegated ” or entrusted, and the government must be a created 
agency , with derivative authority, and cannot be anything else. 

Moreover, he says that the members, both of the senate and of 
the lower house of congress, are “ the delegation ” of a state, repre¬ 
senting it as such. [See also the definition of “ congress,” infra.] 
The states, then, are self-ruling commonwealths associated — “ states 
united,” to use his own phrase ; and the general legislature is a con¬ 
gress of states. [See “ congress,” infra.] 

If this was not Noah Webster’s theory, why should the direct oppo¬ 
site of it be now foisted into his definitions, while all his statements 
and illustrations that support said theory, are suppressed 1 


UNION, AND E PLURIBUS UNUM. 

In the edition of 1844 is the fol- In the edition of 1864 is the fol¬ 
lowing : — lowing : — 

“Union, n. 7. States united. “Union, n. 3. That which is 
Thus the united states are some- united or made one; something 
times called the union. formed by a combination or coali¬ 

tion of parts or members ; a confed¬ 
eration ; a consolidated body; as the 
united states of America are often 
called the union. 

“E Pluribus Unum. One com- “ E Pluribus Unum. One out of 
posed of many. The motto of the many. One composed of many ; the 
United States, consisting of many motto of the United States, as being 
states confederated .” one government formed of many in¬ 

dependent states.” 

Here we find that Noah Webster declared the “ union ” to be 
“states united ” — “many states confederated; ” but that after his 
death, his name was affixed to the untruth, that “union” means 
“a consolidated body ; as, the united states are often called the union;” 
and to the gross absurdity, that E pluribus unum means, in substance, 


VERBAL JUGGLERY. 


251 


that several formerly independent states are consolidated into one 
government, and are no longer independent states, but provinces. 

FEDERAL, FEDERALIZE, CONFEDERATION. 

In the edition of 1844 is the fol- In the edition of 1864 is the fol¬ 
lowing :— lowing : — 

“Federal, a. From Latin fcedus, “Federal, a.” [Then follows the 
a league. 1. Pertaining to a league substance of the old definition, except 
or contract; derived from an agree- that the words “ founded on alliance 
ment or covenant between parties, par- by contract or mutual agreement; as, 
ticularly between nations. 2. Con- a federal government, such as that of 
sisting in a contract between par- the United States,” are left out.] 
ties, particularly and chiefly between “ 2. Specifically, composed of states 
states or nations; founded on alliance or districts, which retain only a sub- 
by contract or mutual agreement; as ordinate and limited sovereignty, as 
a federal government, such as that of the union of the United States, or 
the United States .” the Sonderbund of Switzerland: con¬ 

stituting or pertaining to such a gov¬ 
ernment as the federal constitution,” 
etc. 

“ Federalize, v. t. or i. To unite 
in compact as different states ; to con¬ 
federate for political purposes. — Bar- 
low. 

“Confederation, n. 1. The act [In the edition of 1864 the second 
of confederating; a league; a com- of the opposite definitions is left 
pact for mutual support; alliance, out.] 
particularly of princes, nations, or 
states. 2. The United States are 
sometimes called the confederation .” 

Here again we find Noah Webster, like Washington, Livingston, 
Hamilton, Madison, and other leading fathers, teaching that the union 
was a league or federation of states , and the editors of the later edition 
unwarrantably changing his doctrines. 

CONGRESS. 

In the edition of 1844 is the fol- In the edition of 1864 is the fol¬ 
lowing : — lowing : — 

“Congress, n. 4. The assembly “Congress, n. . . . The assem- 
of senators and representatives of the bly of senators and representatives of 
several states of North America, ac- the people of a nation , especially of a 
cording to the present constitution or republic, for the purpose of enacting 
political compact , by which they are laws, and considering matters of na- 
united in a federal republic ; the legis- tional interest and constituting the 
lature of the United States, consisting chief legislative body of a nation .” 
of two houses, a senate and house of 
representatives. ...” 


252 


FALLACIOUS EXPOSITION. 


I use the italics in all the above extracts to increase the force of the 
contrast. But comment will be dispensed with, because it could add 
nothing to the exposition. Look on this picture, and on this ! The 
true one is a federal congress [from congredi, to come together} of 
states, legislating for their subjects; and the base counterfeit and 
caricature presents a national legislature as sovereign over a nation 
of people. 

The Sum of Noah Webster’s Views. — Here, then, are Noah 
Webster’s teachings, which he fondly thought he had embalmed in the 
magnum opus of his life, as a sacred historical testimony and bequest 
to his countrymen : — 

1. American political sovereignty, which is unlimited authority over 
everything in the state or nation, resides always in the people. 

2. They politically exist and politically act only as republics or com¬ 
monwealths, called states. These are equals and sovereigns, and are 
subject to no political authority whatever. 

3. They, as such, confederated, and thus formed a “ union of states,” 
called “the united states;” but made no change in themselves, either 
in being or authority. 

4. They, as such, constituted governments, each its own and all their 
general one. 

5. To these, their creations, they “ delegated,” — that is to say, they 
entrusted, — not their sovereignty or right to govern all persons and 
things in their territory, but “ powers ” of government, thus governing 
themselves and remaining supreme; and the senators and representa¬ 
tives, chosen by each state, are that state's delegation, to represent her 
in the congress of states. 

In fine, Noah Webster always asserted the unquestionable truth 
that our system is a confederacy of states, — “ states united ” [les etats 
unis'], to use his own phrase, — and that their government was their 
mere agency, or the means by which they governed themselves. 

The Untruths ascribed to him. — In this matter of fact and tes¬ 
timony, he is made to teach as truth the untruth, that our general 
polity is a nation or state, with counties or provinces as subdivisions, 
such as existed under Britain; that congress is “ the chief legislative 
body of the nation , to enact laws and consider matters of national 
interest; ” that the constitution is “ the supreme law of the land,” 
for the government to enforce over states and people; and that, in 
short, the government, i. e. congress, has “ absolute supremacy ” over 
allegiant states. 

All the recent declarations and acts of the dominant party of the 
country, and of the government as administered by that party, entirely 
conform to these forged teachings. 


VERBAL JUGGLERY. 


253 


Pro Tanto, the Book is not Noah Webster’s. — Noah Webster’s 
dictionary means Noah Webster’s definitions; and he and his name 
are responsible only for the products of his own mind. “ The chief 
value of a dictionary consists in its definitions says Noah Webster’s 
son-in-law, Chauncey A. Goodrich, in the edition of 1847, which he 
“ revised and enlarged ; ” and yet, after many editions had been issued, 
with the definitions in question unchanged, the principles involved in 
them were attacked; and while a hot war raged about them, the 
assailants, filled with passion and rancor, were allowed to change such 
definitions to suit their contention and justify their wrongs. No doubt 
the revision of political and constitutional terms was entrusted to some 
eminent lawyer, the correctness of whose work was taken for granted : 
but a great and gross wrong has been done, and it remains to be seen 
what Noah Webster’s descendants will do. 

They would never allow one who had contracted, and then quarrelled 
with them, to define anew the words of the contract, so as to alter its whole 
meaning, or one who had robbed them, or murdered one of their family, 
to change, after the fact, the crime's description, or the meanings of its 
words ! Ah ! if the descendants of that great man inherit any of his 
sturdy nature, clear mind, pure principles, bright honor, and proud 
dignity, they will, as he undoubtedly would, repudiate the wrongful 
changes, and publish, as soon as may be, a genuine edition. 

If the enormity of this wrong were understood, the outcry would be 
universal. Six thousand years of history can show no parallel. The 
American people, at a great (and to the family of Webster a most 
precious) price, bought the results of that great man’s labors, — his 
wares, so to speak, — and they paid him with princely patronage, the 
highest of mortal honor, and the most profound veneration for his 
memory. 

But he conveyed, and could convey, as to these subjects, nothing but 
ascertainments . The language and its meanings already belonged to 
the people; and they wanted the latter fixed precisely , as to contempo¬ 
rary signification, so that their institutional, political, and legal words 
could be ever used, like coins and weights and metes, as tests or measures 
of right and power and duty, by themselves and their ruling agents. 
This was Webster’s noble task, and he performed it royally. 

Contemporanea Expositio. — The reader must keep it in mind 
that the inquiry is ever as to the intent of the makers or constitutors 
of the federal system, just as it would be if the subject were any other 
constitution or instrument expressing will. What did the words used, 
then, mean? This is common sense, and these meanings are the peo¬ 
ple’s rights. “ Contemporanea expositio est optima et fortissimo in lege ” 
is a universally accepted maxim. Daniel Webster said, in 1833: “The 


254 


FALLACIOUS EXPOSITION. 


constitution ought to be considered, when it uses well-known language, 
as using it in its well-known sense; ” and Chief Justice Marshall said, 
in the Burr case : “So far as the meaning of any terms is completely 
ascertained, those by whom they are employed must be considered as 
employing them in their ascertained meaning, unless the contrary is 
proved by the context.” Similar passages could be given from Yattel, 
Pothier, Lieber, and, in short, all other publicists. 

Now these precious materials, of which our political defences, both 
general and local, are built, these walls of adamant, as we fondly 
supposed them to be, surrounding the treasuries and citadels of our 
“blessings of liberty” [federal preamble], are perverted, interpreted 
away, changed, or nullified, by the trusted exponent and defender, or 
his representatives. 

The people — the majestic governing people of this country — 
placed the highest value on Webster’s Dictionary, as a treasury of 
truth and principles, which were to be kept sacred for use, to measure 
and weigh their moral, legal, political, and treaty obligations; and they 
reposed in Webster and his fidelity a knightly, nay, a royal faith. 
The conduct reviewed — like that of those chosen servants of the 
people, who are oath-bound to support and defend, but who yiolate, 
the constitution — may be compared to that of the trusted knight, 
who, while his king was in deadly conflict, got behind his shield, and, 
with his own weapons, wounded him to death! 


CHAPTEE XIII. 


CONSERVATIVE ERRORS. 

I N concluding this part of my work, I will try to expose the errors 
of several public teachers, whose devotion to liberty and the sacred 
defences thereof cannot be called in question. Many of these eminent 
so-called conservatives and strict-constructionists do, with great show 
of research, thought, and logic, combat the errors of “ the Massachu¬ 
setts school,” while they themselves promulgate fallacies nearly as 
reprehensible. 

If this class reform their views of our general polity, they must 
study it in the light of actual contemporaneous history, and the 
herein contained explanations of the fathers, repudiating the false 
gloss thrown on it, first by enemies to defeat it, and afterwards by the 
equally unfounded, because identical, dogmas of Dane, Story, and 
Webster, and their followers. 

“A REPUBLICAN FORM OF GOVERNMENT.” 

Probably the most widespread, important, and cardinal error is in 
reference to the meaning of this seemingly plain phrase. I have seen 
it used in argument hundreds of times in this generation, but never 
in its true sense, i. e. the meaning it had in the minds of the fathers, 
which I shall now try to show. 

This phrase can but mean a republic. “ The people ” were organ¬ 
ized, did exist, and could only act as bodies, called “ Massachusetts,” 
“ Pennsylvania,” “ Virginia,” “ Georgia,” etc. Each was a republic, a 
commonwealth, a state, i. e. a “ moral person,” possessed of a mind 
and will. This will in each— that is, the collective will of the people 
— was to be exercised in self-government; and, in providing that “ the 
united states shall guaranty to every state in this union a republican 
form of government,” the constitution seems to mean that the will 
and power of all the communities of people are to be exerted, when 
necessary, to protect each community of people in self-government, 
i. e. in the free exercise of her own will in all governmental matters. 


256 


FALLACIOUS EXPOSITION. 


The wills of the thirteen states were exerted through deputies in 
the convention of 1787, in devising the “federal constitution j and 
the same wills were separately and successively exerted in ratifying, 
i. e. in ordaining and establishing that constitution, and endowing it 
with its only possible legitimate life and power. 

The Sovereign Wills survived Federation. — The wills exercised 
on that grand occasion dwelt in pre-existent states. To associate the 
bodies-politic as “united states,” and subject their people to “the 
government of the united states,” these wills must have been sove¬ 
reign wills; must have continued sovereign until the government was 
completed and actually set at work; and must, as sovereign wills, 
have survived the act of making the union of states. And hence, 
unless abdication or suicide can be shown, these sovereign wills ex¬ 
isted until, in war, the states were brought under the yoke, i. e. sub¬ 
jugated. 

“ Form ” and Soul both are meant. — But all the attempts at 
exposition I have seen, appear to take it for granted that the provi¬ 
sion referred to, means merely the form of a republic, even though life 
and soul be wanting; or though the said form cower helpless under 
despotism, as several of the American states have heretofore done ! 

I will give here two examples of the error, to comment on. In 
speaking of the Louisiana case, the New York Sun said the following : 
“ The oft-cited clause of the constitution, that the United States shall 
guaranty to every state in this union a republican form of govern¬ 
ment, does not apply to a case like that existing in Louisiana. The 
form of the government of that state is all right.” [N. Y. Sun, 
1874.] 

A leading southern paper — highly conservative — held forth on 
the same topic, as follows: “ That there is no defect in the form of 
the constitution of Louisiana, is perfectly clear. Its form is contained 
in her constitution, which is the especial production of congress by its 
reconstruction laws. . . . How can congress then affirm that the 
form of this constitution of Louisiana is not republican h ” 

The error here is amazing, considering that it is that of a Louisi¬ 
ana journal. In saying “ its form is the especial production of con¬ 
gress by its reconstruction laws,” it virtually but unwittingly said — 
“Louisiana has no sign of a republican form of government.” 

These views which seem universal, even among conservatives, result, 
as I humbly think, from confused thought, or a want of thought. The 
word 11 form ” in the clause, must mean kind or sort. 

When, in the process of making the principles of liberty and human 
rights institutional, the people put the guaranty clause in the federal 
constitution [Art. IV., § 4], they acted in view of the general forms 


CONSERVATIVE ERRORS. 


257 


(or kinds, or sorts, or species) of government, the world then pre¬ 
sented, and publicists explained, viz. : the monarchical, the aristo¬ 
cratic, and the republican; and they said, “We want no monarchy or 
aristocracy, but we aim to establish or perpetuate a republic.” Hence 
the idea in all the institutions then being established was, that the 
people were to govern themselves — all constitutions being their fun¬ 
damental laws, establishing their forms of government, and all rulers 
being their substitutes, agents and servants. All sovereignty was 
held to be ever in the people, and never in the rulers; and the above 
article means as follows : The associated states shall guaranty to every 
state in the association , that she shall have and enjoy the being and rights 
of a republic , — that is to say : New r York, Massachusetts, Ohio, Vir¬ 
ginia, Illinois, Georgia, Oregon, Texas, and others, collectively, are 
bound in sacred faith and international honor, by their treaty, com¬ 
pact, or constitution (whichever it may be called), to secure Louisiana 
in being and remaining a republic. They must use their influence, 
their political authority, and finally, if needs be, their material 
strength, to preserve in her the unqualified right of self-government. 
It does not mean that she shall have “a republican form” without 
substance — the appearance or pretence of freedom without the reality. 
It does not mean that she shall have a constitution, a legislature, an 
executive, a judiciary, and popular voting (some European monarchies 
have all of these), but that she shall be a republic, and govern her¬ 
self— separately in her own affairs, and jointly with her sisters in 
federal. It does not mean that she shall have all her rights reserved 
to her in the federal constitution (as the Storys, Curtises, and even 
many leading democrats, say), but that she shall have and enjoy all 
original rights, and all original power. Rights and powers reserved 
must, of course, be out of the instrument which contains the rights 
and powers delegated, as a moment’s reflection on Amendments IX. 
and X. will show. 

All this is consistent with the legitimate authority in the federal 
constitution, which is plainly written, vicarious, and confined. It is 
authority given to men to act, not for themselves, but for others, w r ho 
of course are above them. These superiors are the people, however 
organized and acting. The claim of absolute supremacy over states, 
instead of delegative authority from and under them, is.the assertion 
of might , trying to become right by force and fraud. 

Self-Preservation the Duty of a State. — The states in this union 
associated for self-preservation, and they contemplated no change in 
themselves, or diminution of authority. To ‘‘provide for “defence 
and “welfare,” they, the said “moral persons,” exercised the investi¬ 
gative faculties, reasoning powers, judgment, and will, that a natural 

17 


258 


FALLACIOUS EXPOSITION. 


person would do, for the same purposes. It must be kept in mind 
that the Almighty, in making men moral agents, i. e. giving them 
the right of self-government, and ruling them into society, requires 
that the above-mentioned powers shall be exercised now and ever, 
for that self-preservation, which is the first law of nature, equally to 
states, persons, and brutes. States as well as men are the products 
of God’s wisdom. Now, reader, think of it, and tell me if you do not 
ascertain facts, reason on them, judge , and determine your will, as to 
your “defence” and “welfare 1 ?” Must not every moral being do so 1 ? 
If the last time you did so, you had bound yourself to do so no more, 
would you not be a slave % If a state has so bound herself, is she still 
free h The great issue now before God and the world, is freedom or 
slavery of states! — states made of men, and their belongings and 
rights! 

Ah! such mental powers in a God-endowed commonwealth — the 
“moral person” Vattel speaks of—are coupled with the duty of con¬ 
stant exercise. A state is charged with the “ defence ” and “ welfare ” 
of her people. Her making this union, is a confession of her duty to 
make another if this, her second effort, fail, as did her - first. And 
nothing but weakness can excuse her for not destroying the despotism 
that prevents the free exercise of her will and duty in this matter. 
Weakness alone makes submission a duty. This and the women and 
children, have often been the sole safety of the oppressors, in some of 
the states! 

Voting was a mere Simulacrum of Liberty, in some of our states. 
In them only the form of institutional freedom was left. “ Soul was 
wanting there.” The will of the corporate despot at Washington, 
instead of the will of the people, was law. But was it not a repre¬ 
sentative government 1 Did not the people elect all ? Is not that 
self-government ? Vain delusion! In England the people elect. Louis 
Napoleon had universal suffrage in France. Our people were similarly 
privileged. We had the “ form,” but no substance, no life of the 
republic! “ The government ” claimed and enforced “ absolute su¬ 

premacy ” over states and people. 

The Guaranty is Really One of Sovereignty. — It is evident, 
then, that the state, as a political body, has the right to the guaranty ; 
and that her soul, her will, and her right to govern, must be included. 
The soul is essential to such “moral person” [Vattel], and reason, 
judgment, and will are essential to the soul. Hence, to guaranty 
republican government to a state, is to guaranty the continued exist¬ 
ence of the community of people referred to; the continued existence 
of the soul of that commonwealththe continued existence of the will 
thereof; the continued existence of the right of that will to govern in 


CONSERVATIVE ERRORS. 


259 


all cases; and the continued existence of its entire control of the 
instruments called votes, by and through which the said will is ex¬ 
pressed. 

These votes spring solely from the wull of the commonwealth. 
Through them, under state laws, and at state polls, all officers, state 
and federal, get their sole validity and authority to act. All the 
power of the federal government of any kind, or on any subject, must 
come through these votes. Says Montesquieu: “In a democracy, 
there can be no exercise of sovereignty but by the suffrages of the 
people, which are their will. The sovereign’s will is the sovereign 
himself. The laws establishing suffrage are therefore fundamental to 
this government.” [. Esprit des Lois, p. 12.] 

Some may fancy they find “exploded theories” in what I here 
write; and may think I am “behind the times/’ and “unpractical.” 
But I am only restating the statements and faith of the fathers; and 
giving the precise acts of the people, in building up their permanent 
institutions; and I am very careful to adduce facts, and to avoid the 
great offence of denying, burying or crushing “ God’s truth; ” for it 
will live through time, “ rise again,” and finally “ sear the eyeballs ” 
of those who, because it is stricken down, and they think it trouble¬ 
some and profitless to raise and defend it, say : “ Let us accept the 
situation,” and “go ahead from attained results!” 

THE FOURTEENTH PARTY TO THE COMPACT 

was, according to Robert Y. Hayne and Judge J. S. Black, the gov¬ 
ernment, which could not have had any existence* till long after 
the eleven states had ratified, established, and finished said com¬ 
pact. 

Hayne, in his debate with "Webster, said : “ Here then is a case of 
a compact between sovereigns; and the question arises — what is the 
remedy for a clear violation of its express terms, by one of the par¬ 
ties 1 ” — thus treating the government, both as a party, and a sove¬ 
reign. [IV. Ell. Deb. 509, 516.] 

Judge Black is an abler man, and a clearer thinker. In the Milligan 
case, he spoke of the “vesting of the judicial power, which the united 
states could legally exercise;” and said—“that was the compact 
made with the general government at the time it was created.” 

Other eminent men make the same mistake, so that the confusion 
of ideas on this subject is general. It is only necessary to say that 
the compact existed and was complete, through those ratifications, 
declared in itself to be sufficient for the establishment of it, many 
months before the general government existed. After the collective 


260 


FALLACIOUS EXPOSITION. 


states, in the congress of themselves, had recognized the finished com¬ 
pact, and advised the states to act under it, by electing their subjects 
as its functionaries; after the several states had elected their quotas, 
according to the express terms; and after these electees had convened 
and organized under the said pact; then and not till then did or 
could the general government exist. It is then absurd to call the 
government a party. 

The real fourteenth party — if any — is, as has been shown hereto¬ 
fore, the association called “ the united states,” to which all the pow¬ 
ers of the constitution were delegated, as Amendment X. proves. [See 
supra , 193.] 

Article I. of the original form of the constitution, as unanimously 
approved by the convention of 1787, corroborates this view fully: 
“ The style of the government shall be ‘ the united states of America.’ ” 
The united republics themselves — and not their agency — were to 
be “the government.” The people, as organized, must govern them¬ 
selves. Otherwise they are not republican! [See V. Ell. Deb. 
377.] 

NULLIFICATION. 

The first remarkable appearance of this error — for such I assume 
it to be — is in the Kentucky resolutions of 1799, said to have been 
written, or, at least inspired, by Mr. Jefferson. [See IV. Ell. Deb. 
545.] The Virginia resolutions of 1798 are also charged — but de¬ 
nied — to contain the doctrine. 

The next most conspicuous assertion of the claim, was that of 
South Carolina, and her leading statesmen, in 1830-1833. 

As has been shown, the state has a sovereign mind and will, of 
which the constitution and the resultant government are alike the 
offspring; while, in establishing such constitution, and working the 
government through agents, the said state is simply exercising its right 
of government, i. e. sovereignty, in a purely functional way. To say 
it is the sovereign law-making power, is equal to saying, it is the sove¬ 
reign law-repealing power. The states elect all government, and dele¬ 
gate all governmental authority. 

But, a state or its convention has no right to withdraw some, and 
leave the rest of the powers; or obstruct the execution of a part; or 
annul a law, while adhering to the union; for the constitution, being 
a compact, is not to be partly suspended, and partly executed, by one 
of the parties. If, however, a state attempt it, only a casus belli is 
made, for coercing the will of a state is inconsistent with the volun¬ 
tariness of the states’ union, and their action in it; and, of course, 
justifies the return of blows. The fathers characterized such coercion 


CONSERVATIVE ERRORS. 


261 


correctly, as war. Hence, the position of the Jackson administration 
is as bad as that of the nullifiers; and its proclamation was both 
petty and fogging sophistry — a state paper alike unworthy of the 
subject and the author. The proclamation of force was not actually 
against an unlawful combination, so much as against the sovereign will 
of an equal commonwealth; and it was treasonable in its nature ! 

A Cardinal Error and a Plain Distinction. — South Carolina 
made a great mistake in attempting to nullify the federal tariff laws; 
and it raised a fatal prejudice against secession, or the ultimate peace¬ 
ful right of self-preservation, which of course includes discretion as to 
occasion, time, and manner. South Carolina should have protested, 
and, if unheeded, withdrawn. Her false position gave Webster his 
great vantage-ground, of which he availed himself most adroitly — 
yoking “ nullification ” and “ secession ” together, and driving both to 
ruin. 

Said he : “ In the constitution it is the people who speak, and not 
the states; ... it does not exact from states any plighted public 
faith to maintain it; . . . it makes its own preservation depend on 
individual duty and obligation.” He then proceeds to say that state 
legislators, judges, and executive officers, like federal functionaries, are 
bound by oath to support the constitution [Art. VI., § 3] and hence 
are compelled to elect senators, and provide for the election of repre¬ 
sentatives and president. The functions of states in the union, he 
argues, are not voluntary; they have no discretion; “the people” 
have bound them inseparably to the constitution, and under the con¬ 
trolling power of the federal government. Their sovereign will, and 
right of self-preservation, are alienated and gone forever. Hence 
(having made his premises, his conclusion is easy), both “ nullifica¬ 
tion ” and “ secession ” are unconstitutional and inadmissible. But 
Mr. Webster finds it convenient to ignore the most important fact: 
that members of a state convention are not mentioned, and are not 
under the obligation of taking such oath ( expressio unius est exclusio 
alterius). Why are not conventionists required to take the oath 1 
Because, immediately representing the sovereignty — they made said 
constitution (including this clause) and are of necessity above it. The 
will that creates, remains above its creation. The will that delegates 
powers, owns them absolutely; and whosoever else holds them, does 
it as agent or trustee. States did not intend to subordinate themselves . 
They did not place themselves under the jurisdiction of the federal 
government, as every line of the record shows! Not only so, but 
they provided against even judicial federal control; and, moreover, 
they spurned the idea of federal coercion of states, from their “ con¬ 
vention of states,” while, at the same time, they gave to the govern- 


262 


FALLACIOUS EXPOSITION. 


mental agency, or commission for federal affairs, just such relations to, 
and control over , their citizens, as their state governments had — and 
nobody claims that these have sovereignty over the states! 

When, then, the organized people — the state — call a convention, 
it is the sovereignty that acts : it is uncontrollable — above all con¬ 
stitutions, and in no degree bound by them, for it is the power that 
alike constitutes and dissolves, makes and unmakes them. Massachu¬ 
setts conclusively proves this in her constitution, as heretofore quoted : 
“ The people of this Commonwealth . . . have an incontestable, un¬ 
alienable and indefeasible right to institute government, and to . . . 
totally change the same when their safety and happiness require it.” 
This constitution, which is full of unqualified state sovereignty, is 
said to have been written by John Adams, the ancestor of the present 
conspicuous persons of that name in Massachusetts. 

The Plain Distinction. —Now we can see, quite plainly, the dis¬ 
tinction between nullification and secession. 

Nullification remains in the union, enjoying its benefits, but only 
obeying such part of its laws as it pleases; and sworn functionaries 
presumably violate their oaths. 

Secession withdraws from the union of states, revoking all powers 
“ delegated ” thereto; and % state officials are relieved of all federal 
obligations by the supreme power that imposed them. 

I think now that it is conclusively proved, by the self-characteriza¬ 
tion, and the action of the states in the union, that each original one, 
being thoroughly organized and sovereign, did, by virtue of its sove¬ 
reignty, through its convention, federate, “ delegating ” a part of its 
governing power to the united states, who, by their agency, constituted 
in the act of federation, govern for their common defence and general 
welfare. And each of these great commonwealths passed into the 
union, exactly as she pre-existed, in her full integrity, with all her 
faculties, possessed of plenary authority, and acting functionally, in 
all matters of government, with uncontrolled will. And ever since 
its sovereignty came by revolution, as well before as since the present 
federal constitution was formed, it has, at discretion, “delegated” a 
supplement of governing authority to an agency for home affairs — 
this also being done by its convention. 

Unquestionably, then, the nullifying or suspending of the laws ot 
the federation by a party, while staying in, and enjoying the benefit ot 
the association, is inconsistent with the “ compact and plighted faith,” 
upon which Mr. Webster, as well as every other candid publicist, 
bases the “ articles of union ” “ between the states ” (as the fede¬ 
ral convention unanimously characterized them), and the laws passed 
in pursuance thereof. 


CONSERVATIVE ERRORS. 


263 


“THE LOST PRINCIPLE.” 

If the states ratified the constitution, each for herself, they must be 
“the 'parties to the compact ” [Hamilton, 85 Fed.], and the only way to 
show that sections, or groups of states, were also parties, is to show 
that they exercised their wills, as such, in becoming so. Am ong the 
misleading and confusing expositions to be noticed, are two, the first 
by “ Barbarossa ” (John Scott, Esq., of Virginia), in 1860, under the 
above title; and the other by Webster and Curtis, to rid the former 
of these two of an inconsistency in his speech of 1833. 

“ Barbarossa’s ” theory is, that in the convention of 1787, a warm 
controversy arose between the larger and the smaller, and between 
the northern and southern states, which was settled by a compact, 
establishing sectional equilibrium. The theory will be found in the 
appendix hereof, in the author’s own words. [See Appendix F.] 
Among the motives and understandings, this may have had place ; but 
it was not expressed and consecrated among those institutional bal¬ 
ances and checks that the sworn statesman or the expositor must take 
cognizance of, and to which he must confine himself. “ Barbarossa ” 
marvels at Madison not mentioning this compact of equilibrium , in the 
constitutional convention of Virginia, in 1829, of which he (Madison) 
was a member. I think the duty of stating, then and there, so im¬ 
portant a part of our system—if part it had been considered—would 
not have been shirked. But, I opine, it was no part. The constitution 
was written, complete and palpable, and contained — and it contains 
now — no hint of the momentous compact, which “ Barbarossa ” 
contends belongs to it, and “ makes the federal system even more 
complex than it has been generally supposed to be.” 

In conclusion of this subject, I submit that the idea of compact is 
inadmissible, where it is not evidenced by the words and figures of the 
instrument, is not promulgated as a part of the supreme law, is never 
mentioned in history, or contemporary annals, but lies occult and un¬ 
known for forty years in a secret journal, which might never have seen 
the light. I should incline to a more positive opinion, but for the fact 
that Professor Bledsoe, who was always thorough in research, and alike 
comprehensive and profound in reflection, thought the matter involved 
a practical and binding compact, of which he promised to treat, in a 
history of the late war, which he intended to write. [See Southern 
Review, Jan. 1876.] 

Webster and Curtis have the Same Idea. — As Daniel Webster 
had inveighed against Calhoun’s use of the phrase “constitutional 
compact,” and had been himself a habitual user of the phrase, he had 


264 


FALLACIOUS EXPOSITION. 


to explain, as did Mr. Curtis, the latter as follows : “ He was speaking 
of a particular clause in the constitution, ... as founded on a com¬ 
pact between different classes of states.” Of course, the mysterious 
“ compact ” is far down, and to judge of it, we must do as we do with 
mummies : in the first place, bring them from under the pyramid, 
and, secondly, unfold them a good deal. But I must pass on, refer¬ 
ring to the above remarks on “ Barbarossa’s ” theory, and to page 211, 
supra. Contemporaneous exposition is valuable, but it must be based 
on the actual provisions of the constitution. 

“THE CONSENT OF THE GOVERNED.” 

In the Declaration of Independence, Jefferson wrote that to secure 
the rights of “ life, liberty, and the pursuit of happiness,” govern¬ 
ments are instituted, “deriving their just powers from the consent of 
the governed.” In a republic, of course, will — the collective will — 
is the proper word, consent being included ; for Englishmen, Germans, 
and Russians give consent to government, just as much as Americans 
do. A clement and gracious king, in doing his own will , always seeks 
the people’s preference or consent; and, in England, the wish of the 
people is a very influential guide to government. But this does not 
answer. Will is wanted. 

Our public men and press seem to think that, because the southern 
states submit, they consent; so that the Declaration is satisfied, and 
the soul of Jefferson content. 

If they be republics, their will — the will of the people — the will 
of the commonwealths must govern. 

“THE WILL OF THE MAJORITY RULES.” 

Is not this phrase of Mr. Jefferson both fallacious and pernicious'? 
I can find no evidence that either he, or any subsequent politician, has 
deliberated on the subject; and it seems to be one of the numerous 
honest but loose and misleading phrases, that so infest our politics 
and confuse our political ideas. 

Will is a unit in the state, and it governs, determining itself by its 
instruments — votes. The majority of voters is never brought to¬ 
gether and organized, so as to make a body for a mind and will to 
dwell and act in, for the purpose and duty of ruling. This simple 
consideration shows the absurdity of the phrase. 

Instead of electees being servants of the electing party, they are 
exclusively the servants and agents of the commonwealth, to carry 
out its will. An official swears to support the constitution, i. e. the 


CONSERVATIVE ERRORS. 


265 


will of the commonwealth, instead of the party platform — “ the will 
of the majority.” 

“To the victors belong the spoils” is alike the plain English and 
the practical result of the dogma. The party is to govern, with their 
platform as their rule of action. It is this which unifies our tripartite 
government, and destroys our system of absolutely independent checks 
and balances. If a bad and weak president or governor is put in with 
corrupt men, he becomes the head of a conspiracy against liberty. 
The three distinct institutions become, and act as, a unit, and cor¬ 
ruption begins. The money and power they handle not only depraves 
them more, but gives them the means of future success. 

Under this doctrine, the simple, old-time President seems to have 
become like a conqueror, dividing among his generals a subjugated em¬ 
pire ; or, to use a figure that will suit some people better, like a suc¬ 
cessful hunter, cutting up and throwing to his tired and hungry 
hounds the victim of the chase. 

“THE CHARTER OF OUR LIBERTIES.” 

King John, in “ the great charter,” designated the rights his sub¬ 
jects should enjoy; and he and his successors pledged kingly faith not 
to take them back. 

King People, in constitutions, constitute governing agencies, and 
designate the powers they shall use for said king. If charters at all, 
they are so only to the governments chartered, or, to use James Wilson’s 
word, incorporated. In his inaugural address, Washington spoke to con¬ 
gress of “the great constitutional charter, under which you are assem¬ 
bled.” The fathers all held this view, and ridiculed the idea of the 
federal constitution being the source, or defence, of any private bless¬ 
ings. 

The fathers deemed the bill of rights unnecessary, and out of place, 
in the federal constitution; but it was finally inserted as a protestative 
statement and treaty guaranty of the chief institutes of freedom,— 
which were above all constitutions, — to allay the suspicions and fears 
of the people. [See first ten Amendments.] 

But, in these later, if not better, days, the constitution has become 
a charter to the people. “The perpetual charter of freedom for a 
self-governing nation ” is what the old North American Review 
called it. Andrew Johnson, and I think James Buchanan, used simi¬ 
lar phrases. 

Last and greatest, however, Jeremiah S. Black said, in the Milligan 
case : “ I prove my title to my estate ” by a solemn deed; so with 
“ my right to a trial by jury. There is the charter by which we claim 
to hold it , . . . the constitution of the united states.” 


266 


FALLACIOUS EXPOSITION. 


Story, Webster, and the federal supreme court are responsible for 
such delusions. But that is no defence to us. If these prove to be 
errors, we should discard them. My right of trial by jmy, and other 
“ blessings of liberty,” have a previous, higher, and more sacred sanc¬ 
tion than the federal pact. The solid and indestructible common¬ 
wealth is their citadel; and the federal pact, with the abov^ guaranty, 
and the still more important one, of the integrity and absolute authority 
of the commonwealth, are the outer and impregnable wall! 

SOCIAL COMPACT —CONSTITUTION —BILL OF RIGHTS. 

It may be well here, in order to enable our people to unmix their 
ideas and think more clearly on these subjects, to discriminate as fol¬ 
lows : Firstly, the social compact is the agreement or understanding 
among the members to be, and obey, the society; in other words, it is 
the organic law of the society. [See Part IV., Chap. II.] Secondly, the 
constitution is the fundamental law, establishing, directing, and con¬ 
trolling the government. It necessarily involves a compact among the 
parties to it, — a law , “the supreme law,” laid on their subjects,— 
and a constitution of an agency to execute the said law. It does not 
include th& social compact, but implies it, or recognizes it as a pre¬ 
existent entity. Thirdly, bills of rights are declarations of society’s or 
the people’s rights, — sacred institutes of freedom, never to be invaded 
by persons or governments. Hence, a constitution of government may 
exist , without including or referring to either the social compact or a 
bill of rights, though one or the other, and sometimes both of these, 
are either expressed or implied in some of our constitutions. 

In our republican form, however, as society governs itself, establish¬ 
ing society is, ipso facto, establishing government, — what is commonly 
called the constitution of government being really and necessarily the 
constitution of a governmental agency. It is of the nature of a re¬ 
public to govern itself. Its institution of government is artificial, — 
the making of a machine or instrumentality. The society is God’s, the 
agency man’s, design. 

THE GROWTH AND DEVELOPMENT THEORY. 

Perhaps this is the most insidious, delusive, and pernicious of all 
the theories that relate to our institutional freedom. The idea in¬ 
volved is, or seems to be, that republican government can and does 
grow commensurately with the area, population, condition, greatness, 
or what not, of the nation, and that it is the duty of the governing 
agents to recognize, from time to time, and effectuate the changes and 
increments. 


CONSERVATIVE ERRORS. 


267 


One would think that the vital provisions for self-government would 
suit San Marino, in all her stages, even if she grew to be a China; 
and that, if changes of institutions and institutes were at different 
times needed, she, the sovereign, and not her agents and subjects, 
could alone rightfully make them. 

The establishes of our federal compact, and other constitutions, 
contemplated the need of change, and provided for their own doing 
of it, in Article V. If amendments and alterations can be made by 
authority not their own, their self-government is over, their freedom 
is gone! 

A moment’s reflection on the sense of the primitive word “stare” 
(to stand) will aid us. It is the soul of numerous derivatives, such 
as stay, stop, steadfast, stable, status, stationary, institute, establish, 
constitution, etc.; and it is obvious that the vital words, “ ordain and 
establish this cons^wtion,” necessarily carry the idea that its provisions 
are to stand till changed by the ordaining power, which is the people, 
the societies, the commonwealths, the republics, the states, especially 
as the amending and repealing are precisely commensurate with the 
ordaining or enacting power. 

But it is unutterably absurd that the servants and subjects, acting 
under these standing orders of the people, the constitution, are to 
watch for some growth and development in some or all of such orders, 
determine when the changes are to be utilized, and finally formulate 
and enforce them, thus reintroducing that very discretion of rulers 
which constitutions were made to prevent, and which, when permitted, 
has never failed to overthrow free government. [See Burke’s view, 
page 7, supra.~\ 

The people are the be-all and end-all of government and governing 
action. They know and feel their evils and defects, as well as growth 
and development, and they can, whenever they wish, most wisely suit 
their institutional changes thereto. They see the questions extant, as 
to railroads, telegraphs, presidential elections, Mormons, etc., and they 
will duly deliberate and act. And their servants, whose duty it is, 
instead of making the changes themselves, to follow and aid the people, 
can only destroy confidence in their morality and wisdom, by showing 
their willingness to make changes in the fundamental decrees of their 
masters, the people, especially as in so doing they necessarily commit 
perjury and treason! 

SECESSION. 

In addition to the remarks in Part I., Chapter IV., I beg leave to 
note one or two errors on this subject. Secession is a natural and 
instinctive act of a sentient being, which, as to right, comes wfithin 


268 


FALLACIOUS EXPOSITION. 


the general one of self-preservation. It would be no more absurd for 
a man to promise not to escape, or even flinch, from danger, than for 
the “ moral person,” the commonwealth, to bind herself not to use her 
mind in settling questions of “ defence ” and “ welfare,” — not to judge 
between right and wrong, safety and danger, freedom and slavery; not 
to separate from what she voluntarily joined; not to repeal what she 
enacted or ordained; not to withdraw powers she delegated; and 
not to dismiss the agents she chose, even if they became enemies, and 
warred,' with her own men and means, to subjugate and destroy 
her ! 

But now we have no party recognizing this vital truth, and no 
aspirant admitting its correctness. The Southern states have spurned 
it. The so-called democratic party condemns it — as they might di¬ 
gestion, sweating, the action of the nerves, or escaping from a house 
afire. And finally the Rosecrans “ crowner’s ’quest” in 1868, ver- 
dicted, “dead by lawful force ! ” and put copper seals on its eyes ! 

Why Ignore Nature and Righteousness ? — God commands every 
self-formed, self-governing, self-protecting society — every society or 
commonwealth, possessing a mind and will of her own, to fight, if 
necessary, to save her children from injustice and wrong, and, a for¬ 
tiori , to secede for the purpose, and avoid war. Neighborly kindness, 
the promotion of mutual interest, and the doing of justice among 
states, are positive moral forces of cohesion of the strongest character; 
while the admitted right of secession, or, in other words, of sundering 
unfriendly or hurtful relations, always potently works towards justice 
and peace and union! The spirit of Abraham’s “ Let there be no 
strife between us,” and that of Grant’s “ Let us have peace,” differ 
“by the whole heavens.” To us, especially, “wisdom’s ways are 
ways of pleasantness, and all her paths are peace! ” In short, if 
amity be cultivated, mutual interest promoted, and justice done, the 
union will never be saved, in any active sense, but will last forever! 
Men and states naturally cleave to friendship and justice ! 

The Late Secessions Unjustifiable. — But let us assume that the 
states had the right to secede; and then view the secessions of 1861 
on the higher plane of morality, and international conduct. If we 
look at the defences and remedies within the union; the vast re¬ 
sources of diplomacy; the influences always working in favor of justice 
and peace; and, above all, the healing in the wings of Time, — those 
acts of the seceding states should be condemned, while the provo¬ 
cations that caused them should be reprobated with even greater 
severit}’’. 

Leaders of the people are too prone to assume that right, justice, 
the spirit of compacts and plighted faith, will be persistently violated ; 


CONSERVATIVE ERRORS. 


269 


and that there is no chance for just settlement in peace and by rea¬ 
son ; and they strive to augment every impulse of fear or anger in the 
masses, and ride to power on the wave. “ The sober second thought,” 
as Fisher Ames terms it, is seldom or never reached before decisive 
and perhaps fatal action ! 

All the counsels and hopes of the fathers were disregarded. Pa¬ 
tience, forbearance, deliberation, and waiting for wise diplomacy and 
for the healing power of Time, should have been the policy of leaders. 
But only two conspicuous men in the seceding states timely gave 
such advice — Davis and Stephens; and the very people supposed to 
be hot with passion, deaf to wisdom, and incapable of hastening slowly, 
elected them unanimously as President and Vice President of the con¬ 
federate states! and unanimously readopted the constitution of our 
fathers ! [See Appendix B.] 

Among the Lessons this “ Part ” conveys, we should especially 
note, that we require leaders, who are older and wiser; less selfish, 
less partisan, less impulsive, and more thoughtful; firmer in princi¬ 
ple, and more conservative in action; and finally — always endeavor¬ 
ing to restrain, or guide aright, the sudden impulses of the people, 
and trying to bring reflection — “the sober second thought.” 

That we should as a duty eliminate from the exegesis of our written 
polity the errors exposed, w T hich have heretofore prevailed. 

That we should reprobate the teaching, that a sworn functionary 
of the constitution may obey his conscience, against its provisions — 
as substantially taught by the quondam North American Review, and 
William H. Seward. 

That we should stamp with infamy the idea that public agents, 
sworn to use the powers in, and not to use those out of, the constitu¬ 
tion, may, at their discretion, use the latter —as Henry Ward Beecher 
and Thaddeus Stevens have taught. 

That our leading minds should try to get (and to teach) a definite 
conception and clear ideas of our general polity, so that all shall real¬ 
ize that it is a superstructure, built of facts, which are as palpable as 
bricks and stones; that in truth it is, as Chief Justice Law said, in 
the Connecticut ratifying convention, “like a vast and magnificent 
bridge, built on thirteen [now thirty-eight] strong and stately pillars; 
and°that the occupants of said ‘fabric’ (i.e. the federal agency) 
would be foolish and wicked to ‘ knock away the pillars that support 
it.’ ” [II. Ell. Deb. 201.] 

That we shall always be victimized by “ fallacious exposition ” on 
this subject till w r e see, and confess, and keep it in mind, that u the 
people ” are the states , and that the states are the people, and are 
the only political form in which the people ever existed or acted — 


270 


FALLACIOUS EXPOSITION. 


the only form, indeed, in which they ever had capacity to act in gov¬ 
ernment. 

That instead of the union being preserved by sophistical chains, 
backed by force, the original motives of union, justice and mutual 
interest, should be promoted and relied on; and that our statesman¬ 
ship should in future aim to settle all questions on such righteous 
basis, by peaceful methods. 

That, above all, the fixedness and sacredness of the written defences 
of our “ blessings of liberty ” should be secure against perversions 
and unauthorized changes; and that outlawry, infamy, and universal 
anathema should be the fate of every agent of the people who betrays, 
in any respect, the sacred trust he is sworn to protect and defend in 
all its parts — the constitution ! 


PART IV 


SOVEREIGNTY IN THE UNITED STATES. 


" What constitutes a state ? 

Not high-raised battlements, or labored mound, 
Thick wall, or moated gate: 

Not cities proud, with spires and turrets crowned; 
No! men, high-minded men ! 

Men who their duties know, 

But know their rights, and knowing, dare maintain, 
Prevent the long-aimed blow, 

And crush the tyrant, while they rend the chain; 

These constitute a state: 

And sovereign law, that state’s collected will, 

Sits empress, crowning good — repressing ill.” 







































PART IV. 


SOVEREIGNTY IN THE UNITED STATES. 


CHAPTER I. 

THE GENESIS OF A STATE. 

I N the republican form of government, society governs itself; that 
is to say, the collective people govern the individual people — 
the former being sovereign, the latter subject. Accordingly all the 
right of government, in our country, is in society, as formed; and 
hence the “general government” can have no possible authority, 
except what is derived from the states — the state, at the institution 
of the said government, being the only form of society, and being 
then, as all admit, sovereign. As to sovereignty, or “absolute su¬ 
premacy,” being in “the government,” Mr. Webster said, in his 
speech of 1833: “No such thing as sovereignty of government 
is known in North America. . . . With us the people alone are 
sovereign.” So said James Wilson, in the Pennsylvania ratifying 
eonvention: “ The sovereignty is in the people before they make a 
eonstitution, and remains in them after it is made.” [See supra , 

p. 101.] 

No respectable denial of these statements has ever been made, and 
no one will dare to deny them. 

The great expounder then admits, as Wilson states, that the con¬ 
stitutors, in constituting government, put no sovereignty whatever 
in it, but left this in the people. 

And as the people only exist and have capacity to act in government, 
as states, the position of both of them necessarily is, that the states are 
sovereign. 

This should seem to end controversy; but the people, who are the 
government, must have an understanding, as well as an impression, 
of the truth, so that when the hydra heads of perversion shall here¬ 
after be cut off, public hate will cauterize the bleeding necks, and 
ever prevent renewal. 


18 



274 


SOVEREIGNTY IN THE UNITED STATES. 


Therefore, elaborate and instructive presentation is necessary, and 
herein to be pursued. And in the process it will be shown that 
genuine American history and exegesis plainly prove : 1. That the 
states are sovereign in the union; and 2. That “the government” is 
a mere agency. 

The whole Subject is one of Facts. — “What political system 
have we 1 ” is, as I have before said — a question of fact, and must 
be argued as such. The states are facts; the constitution they made 
is a fact; and so with the government. An ingot of gold, a bushel of 
salt, or a quintal of codfish, cannot be more precisely weighed and 
measured than they. The utterances of statesmen, or even courts, 
cannot make, unmake, or in anywise change such facts. When once 
existent, they are beyond even the power of Jehovah! If, then, a 
thousand officials, whether political or judicial, were to decide our 
general system to be a union of individual men , and not a union of 
states; or that the sovereignty is in the government , and not in the 
commonwealths of people, they would speak in vain; and the ques¬ 
tion would still remain as one of fact, to be settled by proof. The 
utterances above italicized are, and must forever remain, true or 
untrue. Force cannot settle such a question. War never did, or 
could, make right wrong, truth falsehood, or a fact not a fact. To 
settle the question, then, we must adduce the evidence that proves 
the state, or sovereignty, just as we would prove the ingredients of a 
crime. The facts must fill the technical description. Truth on this 
subject in 1788 was true in 1860. The foedus was a fact at both 
epochs. The war did not change it, no matter what politicians say, 
or deluded people think 1 

The States Themselves are the Government. — We have hereto¬ 
fore seen that the federal constitution, in Articles I. and VII., names 
the thirteen original states as the parties, and treats them as such, 
while all the rest of the articles are corroborative, and give no sign or 
hint of change, as to the geography, organization, character, or au¬ 
thority of the said states. I have already shown that the instrument 
repeatedly characterizes the system as a union of states; that the 
convention unanimously declared that “ the government ” was to be 
“ the united states ” themselves, and never changed their view [V. Ell. 
Deb. 377]; that the delegations of power for federal government 
were (not to the government, or nation, but) to “the united states” 
[Amendment X.]; that the word “ state,” as to Massachusetts and 
New York, meant what it did as to France or Spain—“a body- 
politic, or society of men, united together for the purpose of promot¬ 
ing their mutual safety and advantage,” etc. [Vattel; Fed. Const. 
Art. I., § 9 ; III., § 2 ; Amendment XI.] ; and finally, that the personnel 


THE GENESIS OF A STATE. 


275 


of the federal agency must be the citizens and subjects of the said 
states — each state choosing her own part of them, to aid in the said 
agency. 

The States are so many Republics. — Webster lays down the 
rule that, where well-known language is used in the constitution, it 
must be understood in its well-known sense. And, moreover, Web¬ 
ster concedes the very point under consideration, when he says, in the 
“ Bank of Augusta vs. Earle ” (13 Pet. 584), that the jus gentium gov¬ 
erns all questions not provided for in the constitution, — that is to 
say, these associated nations or states have settled by agreement all 
the questions or subjects the constitution includes, but have left all 
others to be settled as they arise by or according to the law of nations. 
The federal supreme court, in the same case, took the same view. 
Massachusetts, then, on becoming independent, was as complete a 
nation as France, and possessed the same absoluteness of will as well 
as supremacy and exclusiveness of control over her territory and 
citizens. Though one was infantile and weak, and the other a first- 
class power, they were alike and equal in the eye of public law; they 
had the same organism and nature; the life or power of each was 
peculiar, exclusive, vital, and precious to her; and self-preservation 
was the first law of nature to both alike, just as it is to men and 
inferior animals. 

Nay, more, Massachusetts in 1780 promulgated these very ideas 
in her constitution, as I have shown, and she has maintained them 
therein to the present day. [Appendix E, No. 2.] 

Unquestionably, then, our general constitution of government is a 
league, or the result of a league, “ between the states ratifying the 
same; ” and the government provided for is necessarily an agency of 
the said states, and subordinate to them, for they were the sole and 
exclusive actors and sources of authority. Such was, as I have here¬ 
tofore conclusively shown, the theory of the federalists at the making 
of the constitution. 

The Case exemplified by Pennsylvania. — The growth or forma¬ 
tion of an American commonwealth, and the principles of political 
philosophy involved, can well be exemplified and illustrated by the 
case of Pennsylvania. Through generations, she grew, and finally 
became complete in organism, independent, and absolutely self-gov¬ 
erning, — a political and moral being, endowed with perceptive facul¬ 
ties, reason, judgment, and will, incapable of politically acting except 
as a body, the people who formed her reserving no shadow of political 
power, but being governed, in all respects, by the will of her as a 
body-politic. This authority was exclusive of all other, and, as Mr. 
Curtis admits, was the highest on earth, as to the people and territory 


276 


SOVEREIGNTY IN THE UNITED STATES. 


where it existed. There was, in Pennsylvania, no possible chance for 
any other authority to act, in forming the federal constitution, and 
commanding her people’s obedience to it ; and we shall see that this 
body, called Pennsylvania, absolutely and finally acted, in becoming 
a party to the said federal constitution, and giving the federal agency, 
which was provided for, directed, and restricted therein, its only 
authority over the people. 

The Origin of Pennsylvania. — In 1681, Charles II., out of per¬ 
sonal regard for William Penn, and gratitude for the services of Penn’s 
father, — the admiral of that name, who in 1665 defeated the Dutch 
fleet under Herr von Opdam, —granted to the said William, his heirs 
and assigns, “ all that tract or part of land in America,” since called 
Pennsylvania, and did “ make, create, and constitute them the true 
and absolute proprietaries of the country aforesaid, saving always unto 
us, our heirs and successors, the sovereignty of the said countries.” 
Penn and his heirs governed, under the sovereignty of England, for 
nearly one hundred years. 1 

The first Step of making the Province a State. — In 1776, from 

the 18th to the 25th of June, a provincial conference was held in 
Carpenter’s Hall, Philadelphia, composed of about one hundred of the 
leading men of the province, for the purpose of forming a government 
to supplant the British. This conference resolved unanimously, among 
other things, “ That it is necessary that a provincial convention be 
called by this conference, for the express purpose of forming a new 
government in this province on the authority of the people only.” And 
“ without one dissenting voice,” they agreed “ that every associator in 
the province shall be admitted to vote for members of the convention,” 

1 I will here note some of his views, which are instructive. He wrote to Robert 
Turner, January 5, 1681: “It is a clear and just thing, and my God that has given it 
me through many difficulties, will, I believe, bless and make it the seed of a nation. 
I shall have a tender care to the government, that it be well laid at first.” In his state¬ 
ment prefatory to the “frame and laws ” of his government are the following passages: 
“Any government is free to the people under it (whatever be the frame) where the laws 
rule, and the people are a party to fhose laws.” “ There is hardly one frame of govern¬ 
ment in the world so ill designed by its first founders that, in good hands, would not do 
well enough. . . . Governments, like clocks, go from the motion men give them: so by 
them they are ruined, too. . . . Let men be good, and the government cannot be bad. 
But if men be bad, let the government be never so good, they will endeavor to warp and 
spoil it to their turn. I know some say, let us have good laws, and no matter for the 
men that execute them; but let them consider that, though good laws do well, good 
men do better, for good laws may want good men, and be abolished or invaded by 
ill men, but good men will never lack good laws nor suffer ill ones. ... A loose and 
depraved people love laws and an administration like themselves. That, therefore, 
which makes a good constitution must keep it, viz., men of wisdom and virtue, qualities 
that, because they descend not with worldly inheritances, must be carefully propagated 
by a virtuous education of youth, for which after-ages will owe more to the care and 
prudence of founders, and the successive magistracy, than to their private patri¬ 
monies.” 


THE GENESIS OF A STATE. 


277 


provided he is twenty-one years old, has resided one year in the prov¬ 
ince, has paid taxes, etc. They agreed also that the voters and mem¬ 
bers of the convention “should change their allegiance,” the oath 
prescribed for the members being as follows: “ I, A. B., do declare 
that I do not hold myself bound to bear allegiance to George III., . . . 
and that I will steadily and firmly oppose the tyrannical proceedings 
of the King and Parliament, . . . and [consent 1] to establish and 
support a government in the province on the authority of the people only” 
On Sunday, June 23d, they did their largest day’s work, and at the 
conclusion thereof they adopted an address “to the people of Pennsyl¬ 
vania]' which commences as follows : “ Friends and countrymen : In 
obedience to the power we derived from you , we have fixed upon a 
mode of electing a convention to form a government of the province of 
Pennsylvania , under the authority of the people . . . . We need not 
inform you of the importance of the trust you are about to commit to 
them; your liberty, safety, happiness, and everything that posterity 
will hold dear to them to the end of time will depend upon their 
deliberations.” And on Monday, June 24th, they declared that 
George III., “in violation of the principles of the British constitu¬ 
tion, and of the laws of justice and humanity, . . . hath lately pur¬ 
chased foreign troops to assist in enslaving us, and hath excited the 
savages of this country to carry on a war against us, as also the 
negroes to imbrue their hands in the blood of their masters, in a 
manner unpracticed by civilized nations, and hath lately insulted our 
calamities by declaring that he will show us no mercy until he 
reduces us ; ” and that “ the obligations of allegiance (being recipro¬ 
cal between a king and his subjects) are now dissolved on the side of 
the colonists by the despotism of the said king, insomuch that it 
now appears that loyalty to him is treason to the good people of this 
country.” And they further declared as follows: “We, the deputies 
of the people of Pennsylvania assembled ... to form a plan ... for 
suppressing all authority in this province, derived from the crown of Great 
Britain , and for establishing a government based upon the authority of 
the people only , now , . . . with the approbation, consent, and authority 
of our constituents , unanimously declare our willingness to concur in a 
vote of the congress, declaring the united colonies free and indepen¬ 
dent states : Provided the forming the government , and the regulation 
of the internal policy of this colony, be always reserved to the people of 
this colony .” 

Another manifesto of this provincial conference, “ to the Associators 
of Pennsylvania,” says their design is to “ put an end to their own 
power in the province,” “ by calling a convention to form a govern¬ 
ment under the authority of the people; ” and continues as follows : 


278 


SOVEREIGNTY" IN THE UNITED STATES. 


“You are about to contend for permanent freedom, to be supported 
by a government which will be derived from yourselves, and which will 
have for its object, not the emolument of one man or class of men 
only, but the safety, liberty, and happiness of every individual in the 
community. ” 

The State or Nation completed. — The convention provided for 
was duly elected, and it met and deliberated from the 15th of July to 
the 28th of September, 1776. The following is the commencement 
of the organic law established : “We, the representatives of the free¬ 
men of Pennsylvania , in general convention met, ... do, by virtue of 
the authority vested in us by our constituents , ordain, declare, and estab¬ 
lish the following declaration of rights and frame of government to be 
the constitution of this commonwealth , and to remain in force therein, 
forever unaltered, except in such articles as shall hereafter, on expe¬ 
rience, be found to require improvement, and which shall, by the same 
authority of the people , fairly delegated, as this frame of government 
directs, be amended or improved, for the more effectual obtaining 
and securing the great end and design of all governments, herein¬ 
before mentioned.” 

Thus was Pennsylvania established as a state. The people all as¬ 
sented to the association, and, as a society , they assumed sovereignty, 
that of Great Britain being ipso facto displaced. They declared, in 
the above-mentioned organic law, by virtue of their sovereignty and 
as matters of original and unlimited right, as follows : “We, the people 
of the commonwealth of Pennsylvania, ‘ordain and establish this consti¬ 
tution . . . All power is inherent in the people, and all free 
governments are founded on their authority, and instituted for their 
peace, safety, and happiness.” •“ The community hath an indubitable, 
inalienable, and indefeasible right to reform, alter, or abolish govern¬ 
ments, in such a manner as shall be, by that community, judged most 
conducive to the public weal.” “ All officers of the government are 
their trustees and servants, and at all times accountable to them.” 
[See the Pa. Dec. of Rights.] 

Now, where is the national idea, which the Lincolns of the country 
say originated at this period ? No other right of government over 
the people of Pennsylvania is here recognized than their own as a peo¬ 
ple. The allegiance to, and government of, the king is done away 
with, and — what is the substitute ? “ The government of the peo¬ 

ple only.” What people? “The people of Pennsylvania.” These are 
the very words. No sovereignty or original authority whatever is 
recognized as being out of the state. These provisions remain in 
her constitution to this day, though, in 1790, she held a conven¬ 
tion to conform the said fundamental law to the federal “ supreme 


THE GENESIS OF A STATE. 


279 


law ” she had just agreed to, both laws being alike the offspring of her 
will. 

No candid man can fail to see in Pennsylvania the state or nation. 
Says Vattel (Chap. I. § 1): “A nation or state is a body-politic or 
society of*men united together, for the purpose of promoting their 
mutual safety and advantage by their combined strength.” This is 
precisely the description given by Judge Story in his commentaries. 
[Vol. I. § 207.] 

And to this day there has never been ordained, or even thought of, 
by the said people, one single line transferring or abating her abso¬ 
lutely sovereign authority of government; but she has merely dele¬ 
gated to her “ trustees and servants,” in her federal and state agencies, 
numerous “ powers ” of government, which are to be held and wielded 
by her citizens and subjects for her benefit, she retaining the ulti¬ 
mate governing power over her territory and people, entirely and 
absolutely. 

As all the people of Pennsylvania consented, actively or passively, 
to these proceedings and declarations, they consummated and became 
bound in the republican social compact, this being completed when 
the independence of the state was established. This was a union of 
people, forming a body-politic, and it is the only union of people ever 
formed. Subsequently, Pennsylvania, as such body-politic or com¬ 
monwealth, associated herself with her sister states, and with them 
made a union of states. How did she do it V She held a convention; 
she examined the federal plan proposed; it was stated in said conven¬ 
tion by Chief Justice McKean, nem. dis. } that the convention derived 
its whole power from “ the people of Pennsylvania,” and was elected 
solely “to ratify” or “to reject” the said federal plan [II. Ell. Deb. 
530]; and the ratification was “in the name and by the authority of” 
“the people of the commonwealth.” [I. Ell. Deb. 319.] Thus, as a 
body-politic, she gave existence and jurisdiction to the federal govern¬ 
ment in Pennsylvania. Thus, as a sovereign, she confederated, and 
became one of “ the united states.” 

Webster wrote, in 1819 : “The only parties to the constitution, 
contemplated by it originally, were the thirteen confederated states.” 
In 1850, he said “the states are united, confederated,” and that 
u the constitution is the bond, and the only bond, of the union of 
these states.” 

His inconsistent utterances of 1830 and 1833 were simply the 
sophistry of the advocate. 

No parties to the constitution but states were ever contemplated. 
Chancellor Pendleton, the president of the ratifying convention of 
Virginia, expressed in that body, most forcibly, the universal under- 


280 


SOVEREIGNTY IN THE UNITED STATES. 


standing: “If we (the people of Virginia) find it to our interest to be 
intimately connected with the other twelve states to establish one 
common government, and bind in one ligament the strength of thir¬ 
teen states, we shall find it necessary to delegate powers proportion¬ 
ate to that end.” [III. Ell. Deb. 298.] 

In fine, as Pennsylvania and her sister republics created the federal 
government, and delegated its entire authority, our general system 
can but be a confederacy of absolute sovereigns, — no authority on 
earth being above them collectively, or — as they are equals — indi¬ 
vidually. 

In the next two chapters I will treat of the social compact, as ex¬ 
hibited in the case of Pennsylvania, and show the absurdity of the 
modern idea, sophistically taught by Story, Webster, Curtis, and others, 
that the federal constitution had the effect of forming a nation, and 
of consolidating and degrading the states to provinces or counties, or 
rather dissolving them, and forming their elements into a new nation; 
for this is the practical result of the modern Massachusetts theory, 
which every word of the federal pact condemns, while no line of his¬ 
tory or writing of the fathers supports it. 


CHAPTER II. 


THE REPUBLICAN SOCIAL COMPACT. 

HE object of all society is the protection and welfare of the indi- 



J- dividual members. In a monarchy or hereditary aristocracy, 
society is preserved, and the members protected, without regard to 
their will — the man or class that rules keeping authority by force ; 
while in a republican society the members are voluntarily associated, 
and the society governs itself. The so-called government, being com¬ 
posed solely of representatives, is necessarily an agency, and the 
sovereignty, or right of self-government of the community, is in no 
wise impaired by the imparting or delegating of power to the said 
so-called government. 

A republic is founded on the principle of man’s free moral agency. 
As God made him, and endowed him with the social instinct, both he 
and the society he forms are God’s productions. As man is finally to 
account for his action here, he necessarily has the power of self- 
control,— the faculty of choosing between good and evil, — the'op¬ 
tion to obey or disobey. His final accountability were unjust if he 
has no free will or volition as to government. It seems then, that, 
individually and collectively, man is capable of, and entitled to, self- 
government, and that the only divine right of government on earth is 
self-government. May we not assume, then, that the republic is God’s 
form of polity 'l 

The difference, in political condition, between a man in a monarchy 
and one in a republic, is that in the former he is held by force to an 
indissoluble allegiance, while in the latter he is free to remain a 
member, or to expatriate himself. 

The Social Compact of Pennsylvania. — - In the case of Pennsyl¬ 
vania, the citizens participated in, or consented to, the proceedings or 
declarations set forth in the preceding chapter on “the genesis of 
a state; ” and as he was then, and ever afterwards, free to remain a 
part of the commonwealth, or to expatriate himself, he, by remaining, 
necessarily subjected himself to the social compact, and to the obliga¬ 
tions thereof. 


282 


SOVEREIGNTY IN THE UNITED STATES. 


Was he thus free 1 Let Pennsylvania herself answer: “ Emigra¬ 
tion from this state shall not be prohibited.” [See her const.] What 
says Vermont 1 “ That all people have a natural and inherent right 

to emigrate from one state to another that will receive them.” [See 
her const.; also const, of La., and others.] However, such a dec¬ 
laration is supererogatory, for the principle is vital to a republic, as 
will be seen. 

Contemporaneous Expositions. — I will now present expositions 
of the fathers on this subject, which no one, in those days, dared to 
controvert. These are for the double purpose of setting forth these 
first institutes of freedom, and for confronting the perverters with 
authorities they cannot deny, or sophisticate away. 

Said Tench Coxe, of Pennsylvania, in one of his masterly papers 
in favor of the plan of the convention of 1787 : “The principle on 
which free sovereignties ought to confederate is quite a new question. 
. . . Most of the states being in possession of free governments, some 
have looked for the same, forms in a confederating instrument, which 
they have justly esteemed in their several social compacts.” He dis¬ 
tinguishes clearly between the formation of a society of people, i. e. a 
commonwealth, and a society of states, i. e. a confederacy. [See Am. 
Mus. for 1788.] 

John Dickinson, who had been president of Pennsylvania and of 
Delaware, and was one of the ablest statesmen and political writers 
of that period, made, in his powerful arguments in favor of the new 
federal system, the same distinction that Coxe did between the con¬ 
stituted league of states, then being formed, and the social compact 
by which individuals formed the state. [II. Pol. Writings.] 

Said Noah Webster, in his American Magazine for December, 1787, 
“ The whole body of people in society is the sovereign power, or state, 
which is called the body-politic. Every man forms a part of this 
state, and so has a share in this sovereignty: at the same time, as an 
individual, he is a subject of the state.” 

Decisive Testimony of Massachusetts. — Passing by the numerous 
evidences and recognitions of this theory in the constitutions and 
bills of rights of the other original states, let us quote Massachusetts 
herself, and let her refute the arguments and assertions of her sons. 
In the preamble to her constitution she says: “ The body-politic is 
formed by a voluntary association of individuals. It is a social com¬ 
pact, by which the whole people covenants with each citizen, and 
each citizen with the whole people, that all shall be governed by cer¬ 
tain laws for the common good; ” and that government is instituted 
and administered “ to secure the existence of the body-politic,” and 
protect “ the individuals who compose it,” in “ their natural rights, 


THE REPUBLICAN SOCIAL COMPACT. 


283 


and the blessings of life.” Therefore, in the said organic law she 
declares as follows: “ The people inhabiting the territory formerly 
called the Province of Massachusetts Bay, do hereby solemnly and 
mutually agree with each other to form themselves into a free, sove¬ 
reign and independent body-politic, or state, by the name of the 
Commonwealth of Massachusetts.” She further declares that she has 
“ the sole and exclusive right of governing” herself as a sovereign; 
that she will forever exercise this right; that she can “ institute,” 
“reform,” or “totally change” all government at will; that all citi¬ 
zens are her subjects; and that all functionaries of government are 
her “ substitutes and agents.” 

Here is the deliberate and solemn statement of the members, that 
they have formed themselves into a body-politic — a commonwealth 
— a sovereign state. We cannot gainsay or go behind this declara¬ 
tion. They make repeated statements of their sovereignty. [See 
constitution of Massachusetts.] And all the states at the same time 
solemnly agreed, by treaty, that each “ retains her sovereignty.” 

By “ sovereignty,” I do not mean government, but the right of 
absolute control in all things, including the right to establish govern¬ 
ments, i. e. governmental agencies. It must be kept in mind that 
the word sovereignty has but one meaning — that of supreme and 
uncontrollable authority. [See Webster’s dictionary, and all others.] 
Hence it cannot be predicated of the so-called government, or powers of 
government, in a republic, for these must always be subject to the organ¬ 
ized people — the commonwealth. As sovereignty in a republic neces¬ 
sarily includes the right to establish, amend, and abolish governments, 
it is simply absurd to say a government in a republic is sovereign. 

It is certain, then, from the testimony of this and other states, 
that a sovereign commonwealth was formed and consummated by 
social compact; and that it existed and acted as such, in making the 
union or federal system. 

The Rationale of Our Social Compact. — It is obvious that if a 
man can change his membership from one commonwealth to another, 
he is, by remaining in the first, under the obligation of being a part 
of it; of being governed by it; and of performing all the various 
duties which its existence and welfare requires of him; the reciprocal 
obligations on the society’s part being the protection of him in his 
life, liberty, and means of happiness. This mutual understanding, 
and the reciprocal obligations thereof, do exist, and are the actual 
conditions of the society’s existence. They constitute all the elements 
of a compact, which, though only implied, form not the less the politi¬ 
cal and philosophical entity. By and through such social compact, 
the republic must exist. 


284 


SOVEREIGNTY IN THE UNITED STATES. 


The members are the community ; and each of them is obviously 
merged in it, and entirely subject to its control. His political status 
is fixed, and his citizenship is an integral part of the community. 
From the nature of the case, he can reserve no political rights; so 
that the idea of his co-operating with the citizens of all the states, 
to form a nation by a second social compact, is too absurd for com¬ 
ment. The matter of organizing society had been completed. Each 
state had every possible characteristic of a nation, and, whether it fed¬ 
erated or remained single, it could act as such, for it was a moral 
person, with all mental attributes, including will. In forming the 
union, then, the matter in hand was government, not organization 
of society. Government could but be delegative, and if society was 
not already completed, and capacitated for political action, it was 
incapable of doing the delegation. Preformed states did actually 
do such delegation, and they were named in the compact as the 
bodies to constitute, and carry on, the federal system of government. 
The states, then, being perfect political bodies, the citizens were 
merged completely therein : and could, in no way, act again in form¬ 
ing society. 

Aiming to make my argument of the best possible and, in the 
main, undisputed authorities, I quote the following: Vattel, in Book 
I., Chap. I., after describing the nation or state, proceeds : [§ 2] “ By 
the very act of the civil or political association, each citizen subjects 
himself to the authority of the entire body, in everything that relates 
to the common welfare. The authority of all over each member 
essentially belongs to the bod}' - politic or state.” 

In Chapter II., § 16, he says : “ In the act of association, by virtue 
of which a multitude of men form together a state or nation, each 
individual has entered into engagements with all, to promote the gen¬ 
eral welfare, and all have entered into engagements with each indi¬ 
vidual, to facilitate for him the means of supplying his necessities, 
and to protect and defend him. It is manifest that these reciprocal 
engagements can be no otherwise fulfilled than by maintaining the 
political association. The entire nation, then, is obliged to maintain 
that association; and as their preservation depends on its continu¬ 
ance, it thence follows that every nation is obliged to perform the 
duty of self-preservation.” “ This obligation,” he further says, “ is 
natural to each individual of God’s creation, and is derived to nations 
from the agreement by which civil society is formed : ... it sup¬ 
poses a human act, to wit, the social compact.” See to the same 
effect, I. Blackstone, 47; also Lieber’s view [Pol. Eth. Chap. VIII. 
§ 917]. The above statement of Yattel is correct and philosophical, 
at least as far as the law of being of a republic is concerned. Further, 


THE REPUBLICAN SOCIAL COMPACT. 


285 


the present author saith not. Rousseau, in his “ Treatise on the 
Social Compact” [Ch. VI.], most conclusively sets forth the repub¬ 
lican social compact, and states the object of the association to be, 
“ to protect and defend, with the whole force of the community, the 
persons and property of each individual.” And Hume, though writ¬ 
ing before the British provinces became American republics, fore¬ 
casted or recognized the very principle of the social compact, which 
became the law of their being, as states. [Hume’s Essays, No. XII.] 
And the great Burke said : “ Society is indeed a contract.” [See 
his French Revolution.] 

But let us take a step further. These bodies were formed for self- 
government, and 

Government is Mental and Functional. — All acts of government 
are acts of mind, and mind must dwell in a body, and act through its 
organs. In our system, the only possible body for original governing 
mind to dwell in, is an organized society of people — a state. And 
whatever is done in making institutions of government, and putting 
them in force, through laws and the execution thereof, must be func¬ 
tional (for such acts are precisely what society and its mind were 
made for), just as thinking is functional to the brain, and digesting 
to the stomach. Hence such action in no wise touches, let alone 
impairs or changes, the existence, essentials, or authority of the 
commonwealth. And it is of this mind and its right of investi¬ 
gating, thinking, reasoning, judging, and willing, that sovereignty 
is alone predicated. And this dwells — not in persons, but — in the 
collective mind of the people — in the corporate body called the 
commonwealth, republic, or state — the “moral person” as Yattel 
and others call it; “the moral collective body,” to use Rousseau’s 
phrase. 

Constituting the General Government was Functional. — It 

follows from the above, that ordaining and establishing the consti¬ 
tution was functional action of the states. They could, and did, 
through their deputies, meet in “ the convention of states,” as Ham¬ 
ilton and others called it, and deliberate upon and mature a plan of 
union and government. They could and did send the plan to the 
congress of themselves. They could and did, in congress, send the 
plan to each one of themselves, for separate adoption or rejection. 
Each state could and did, of her own motion, in her own time, and 
■wherever she pleased, call a convention to say whether she would join 
the “ union of states,” and be one of “ the united states,” or not. 
Each was unlimited as to deliberation, and as free to reject as adopt. 
All finally adopted, thus doing the only acts history mentions, or even 
hints at, towards ordaining, establishing, and vivifying the constitu- 


286 


SOVEREIGNTY IN THE UNITED STATES. 


tion. And afterwards, in the same functional way, each chose and 
sent her allotted part, or quota, of the personnel of the government, 
to administer it — those she sent, being her own “ members,” “ citi¬ 
zens,” “substitutes,” and “agents,” as all the fathers and all the 
states considered and called them. And, finally, upon this point, the 
right to amend — identical with the right to abolish — is to be exer¬ 
cised functionally by the states— [See Article V.] this indicating the 
continued existence of the state, with the same mental machinery to 
amend, that adopted, and necessitating the same functional action in 
the future. 

A Clear Conception of the States is needed, and by a moment’s 
thought the reader can get as precise and clearly defined an idea of 
them, as he can of thirteen men, horses, dogs, steamboats, or eggs. 
Thirteen entities, or pre-existent things called states, were named and 
provided for in the constitution, as the united states. They had 
already appeared in history, and often acted. Look at their names, 
and reflect. The word Pennsylvania (or Massachusetts), for instance, 
means a distinct thing, with area, people, organization, mind, power, 
right, duty — all distinct and peculiar. Such entities (and there 
were thirteen of them) were unsusceptible of being made one, without 
being, ipso facto , destroyed. If their people were then made into one 
state, they cannot now be united states. This shows why Webster 
said, in 1850, — near the close of his life — as heretofore quoted: 
“ The states are united, confederated — not, chaos-like, together 
crushed and bruised.” “The constitution is the only bond of the 
union of these states.” See also his remarkable speech in 1852, at 
Annapolis. [See p. 210, supra. ] 

Divine Right. — The mind and capacity for, and the right to, self- 
government, are Divine creations and gifts, whether in a person or 
society; and such mind is alike the seat of self-government, and of 
the instinct of self-preservation. Self-control, both of persons and 
states, and human accountability therefor, are the only ideas on 
this subject that consist with the revealed plan of the Almighty 
Father and Governor. And to assail either person or state with 
violence, is attacking one of God’s beings, for, as man is created with 
a social nature, society, not less than man himself, is a creation of 
Deity. 

The Divinely ordered social instinct, then, causes society. This 
republic, commonwealth, or state, has the God-given right of self- 
government, which it exercises through mind, and functionally. It 
and its fellows get together, in federal or league-al compact, volun¬ 
tarily. When did involuntariness come, so as to make the indis¬ 
soluble union 


THE REPUBLICAN SOCIAL COMPACT. 


287 


If named pre-existent bodies of people were united or associated, 
how did the said bodies lose their separate integrity, so as to become 
part of an aggregate nation of people 1 

If, by the revolution, the communities called provinces became 
states, how did they lose the “ sovereignty ” all declared each to 
possess, and again become provinces or counties ? 


CHAPTER III. 


SOCIAL-COMPACT FALLACIES. 

THE EXPOUNDERS ON THE SOCIAL COMPACT. 

S TORY, Webster and Curtis aim to show that the people of all the 
states, by a second social compact, formed a nation, called the 
“united states”—an absurdity like saying that thirteen persons 
were formed into a person, called the united persons. Moreover, the 
forming of such nation of individuals would require that the constitu¬ 
ents should be free to act. This could not be, for each was bound, in 
political matters, to be governed solely by the body-politic he belonged 
to, and to act only as part of said body. Indeed, his political authority 
was confined to that vote, which the body delegated to him, to be 
used as a part of the means of determining her will; and he actually 
exercised this privilege by voting for the members of her ratifying 
convention, through which she willed to adopt the federal pact. The 
formation of the national society in question would have necessitated 
the dissolving of the state, and the absolving of the citizen from his 
obligations. We know this was not done, because the states are 
named in the pact as “the United States;” and they went, with 
their citizens, into the union unchanged. And no citizens are recog¬ 
nized in the said pact, but citizens of the several states. 

The expounders argue that the state constitutions are not social 
compacts, but fundamental laws. [I. Sto. Com. § 333 et seq.~\ This 
is entirely true, but the constituting of society is one thing, and the 
constituting of government another. The social compact is the law 
of the society’s or state’s being, whilst the constitution must be the 
law of the government’s being, or, in other words, the law creating, 
directing, and controlling the government of the said society, which is 
the pre-existent and law-making body. History plainly distinguishes 
the law of being of the community from the law of being of the gov¬ 
ernment ; for when the first constitution of Massachusetts — that of 
1780 — was formed, she had been a perfect community — a body- 
politic, for many generations, requiring nothing but independence to 
make her a sovereignty; and when Pennsylvania’s first constitution 


SOCIAL-COMPACT FALLACIES. 


289 


was formed, in 1776, she had, for about one hundred years, been a 
complete body-politic, governed by William Penn and successors, 
under the sovereignty of the British crown, merely lacking the inde¬ 
pendence which the war consummated, to make her a perfect, sove¬ 
reign, and uncontrollable state. First, then, we have, as a fact, the 
complete and absolute state — identical with its members — they 
voluntarily associated. Essential to this state is a political will. 
Second, we have, as a fact, the government — state or federal — the 
creation of the state’s will. To make the former agency, the states 
acted severally,; to make the latter, federally. The constitution, in 
either case, is the expression of the will of sovereignty, the law of 
being of the government, and the evidence of its existence and 
“ powers.” 

A Misstatement exposed. — It is, then, a mere subterfuge of the 
expounders, to assume that somebody regards the constitution as a 
social compact [I. Sto. Com. § 333], and proceed to show, as if in 
refutation, what nobody denies, to wit: that it is a fundamental law, 
and not a social compact. On this point, as usual, Massachusetts, 
their own cherishing mother, confounds them, as I shall now show, 
exposing, at the same time, a misquotation. Story says [Ibid.] that 
she declares, in the preamble to her constitution, that “ government 
is a social compact, by which the whole people covenants with each 
citizen, and each citizen with the whole government.” 

This is a misquotation. The true one is to be found on page 283, 
supra. She says “ the body-politic is formed ” by “ a social compact ” 
— not that “ government is a social compact; ” and she states the 
compact to be by “ each citizen with the whole people ” — not with 
the “government.” He seldom, if ever, quotes correctly, or argues 
fairly, on these subjects. 

After stating the coqcipact, the body, and the object in view, she 
continues: “It is the duty of the people [i.e. the preformed body], 
therefore, in framing a constitution of government, to provide for” 
just laws; “for an impartial interpretation and a faithful execution 
of them.” Her idea, then, was that the preformed body was to estab¬ 
lish the constitution of government. [See Const, of Mass.] 

Nay, more, both she and Pennsylvania declare that the people [i. e. 
the pre-existent body-politic] have the inherent right to institute, 
amend, or abolish government, or constitutions of government, —thus 
again showing the social compact to be one thing, and the constitu¬ 
tion of government another. And they never dreamed that abolishing 
the government of their creation, was abolishing society or abdicating 
self-government, and bringing anarchy and chaos, as some pretend to 
think; for they were conscious of being republics, formed indepen- 

19 


290 


SOVEREIGNTY IN THE UNITED STATES. 


dently of, and remaining above, their constitutions of government. 
They were themselves the real government, and hence there could be 
no interregnum resulting from a change of mere agencies. Indeed, 
lightning might strike and destroy either federal or state government, 
and leave the state herself uninjured, and even unjarred, to proceed, 
for her safety and welfare, to make another. In fine, the two ideas 
of a man, and his self-control, are not more separate than the two 
ideas of a society, and its self-government. 

For the want of information, and clear and unprejudiced thought, on 
these subjects, in 1861, many clergymen went almost wild. Rev. Dr. 
Breckinridge said : “ Secession is a proceeding which begins by tear¬ 
ing in pieces the whole fabric of government, both social and politi¬ 
cal.” “ Its very design is ... to annihilate the institutions of the 
country,” etc. Kev. Dr. Hodge, of Princeton, argued similarly. Rev. 
Dr. Junkin filled a considerable book with such matter, and properly 
called it “ Political Fallacies,” for one more true to its title was never 
published. 

Specimens of Expounding on this Subject. — It is well to group 
here two or three of the extraordinary expoundings on this matter. 
It is fatal to the “ school,” that the original republican society must 
exist by the consent of the members to be, and act, as a society; and 
that hence the states must be independent in existence, and sovereign 
in will — our general system being a republic of republics, or federa¬ 
tion of republican states. 

Therefore, they pretend to explode the actual social compact, and 
assert, in substance, that the constitution of the united states is the 
constitution of a state, or nation of people, in which the quondam 
states have become subdivisions, while their rights and powers are 
reserved to them, by the said nation, in the said constitution. They 
more than intimate that the people of all the states, “ in the aggre¬ 
gate,” formed a second social compact, doing away with all the 
original ones, and making themselves one state. 1 

John Quincy Adams goes farther back. — This, in substance, is 
the contention of Story, Webster, and Curtis, to which I will add the 
surprising statement of that wiser politician, John Quincy Adams. 
Seeing the pre-existence and continuation of the states to be fatal to 
the national theory, he concluded to have them strangled at their 
birth by the infant Hercules of American nationality; so, at Boston, 

1 Mansfield, in his Political Grammar; Brownson, in his American Republic; Jame¬ 
son, in his Constitutional Convention; Draper, in his Civil War; Greeley, in his Ameri¬ 
can Conflict, and others of that school — all seem to deny that the original communities 
or republics were formed by social compacts; and affirm that the nation was so formed. 
Their theories are remarkably varied and inconsistent, showing the want of facts. But 
to such arguers facts are trammels. They prefer figments! 


SOCIAL-COMPACT FALLACIES. 


291 


on the 4th of July, 1831, in Faneuil Hall, he discordantly orated as 
follows : “ The Declaration of Independence was a social compact, by 
which the whole people covenanted with each citizen, and each citizen 
with the whole people, that the united colonies were, and of right 
ought to be, free and independent states.” 

This remarkable assertion is entirely unfounded. The instrument 
promulgates great general principles; and, after detailing reasons 
therefor, simply declares the independence of the states, who, in con¬ 
gress, make the declaration. 

“ Hotchpotch.” — I will, en passant , cite without comment, and as 
a curiosity, the statement on this subject of Professor Jameson, of the 
University of Chicago, in his “ Constitutional Convention ” (p. 29): 
“The people of the United States, in 1789, threw the existing con¬ 
stitutions of the several states into hotchpotch, and repartitioned 
&mong those bodies the powers they were thenceforward to exercise, 
giving a portion thereof to the states, a portion to the general govern¬ 
ment, and reserving the residue to themselves.” 

Hume’s Explosion. — The expounders, determined to show that 
the people were lying loose, so that the fathers could, in 1787, herd 
or aggregate them into a nation, assert that Hume exploded the social- 
compact theory, thus depriving our states of their law of being. We 
have already seen .that his explosive dynamics did not blow the social- 
compact idea out of the Massachusetts organic law, and we will now 
see that he did not affect our precious social ties at all. 

In his Essay No. XII., written in 1752, after exposing the fallacy 
of various European theories on this subject, he proceeds to say 
“ My intention here is not to exclude the consent of the people from 
being one just foundation of government. It is surely the best and 
most sacred of any.” 

Here, then, was forecasted by that great man the very law of repub¬ 
lican being, the vitality and cohesive force of every commonwealth, — 
the “consent or will of the persons forming it.” Indeed, the whole 
philosophy of the republic is comprehended in that one sentence. 
Such, too, was the theory of Edmund Burke. 

The true idea of the Declaration seems to have passed away with 
the fathers, — there not being virtue and understanding enough in 
American politicians to keep it alive. The consent, which was de¬ 
clared to be the only just foundation to government, was the consent 
of the party to a contract. The consent of the people, as heretofore 
remarked, means the will of the people. 

Think of it! “ Consent of the governed ” is a phrase of no value, 

except in the sense I mention. Poland, Venetia, and Ireland, yielding 
to tyranny, consent. All slaves consent. Order reigned in Warsaw 


292 


SOVEREIGNTY IN THE UNITED STATES. 


because of consent. And, finally, wherever peace has been made by 
desolation, the trembling wretches, hid in caves, were willing to con¬ 
sent to any terms. 

No! no! Messrs. Politicians, when the American people, as they 
are organized and capacitated to act, do absolutely govern themselves, 
both domestically and federally, then will be restored the consent of 
the social compact, and of the Declaration of Independence, but never 
before ! 

The State rules in all Things. — The change, by independence, from 
a province to a state, was necessarily a change from subordination to 
supremacy. Sovereignty is the very thing that distinguishes a state 
from a county or province. We have found that Massachusetts was 
formed by social compact of her people; that, as a commonwealth, 
she is absolutely sovereign, and that her citizens are completely her 
subjects. The citizens, then, being merged in, and controlled by, the 
state, could, by the state only, be subjected to the federal pact, 
government, and laws; and he obeys these solely because the state 
commands it. 

The Germ of the Republic. — It is evident, then, that the states 
of America reversed the monarchical principle of indissoluble allegiance, 
— “ once a subject, always a subject,” — and established the one 
that each individual could, of inherent right, migrate and establish 
new social relations at pleasure; and, consequently, that his obliga¬ 
tions to the community rested solely on his voluntary engagements. 
This necessitates the social compact, and shows it to be the germinal 
idea of the republic, and this body to be self-organized and self- 
governing. And it is further evident that the germ of political free¬ 
dom is in the member of the society. 

The Society called Pennsylvania. —We see, then, that Pennsyl¬ 
vania, composed of her voluntarily associated members, on becoming 
free from England, became sovereign herself, and that afterwards, with 
entire individuality, and with sovereignty unabated, she federalized 
herself in the present union. 

The Polity is Self-government of Societies. — Not a line in all 
American history even hints at the formation of any other societies, 
communities, and commonwealths of persons than states, or of these 
bodies having any limitation whatever on their capacity or power. 
These states were organized and complete, were pre-existent bodies, 
at the time of federation. They met in the convention of 1787, 
planned the federal constitution of government, and by their respec¬ 
tive sovereign wills — evidenced by their respective ordinances of ratifi¬ 
cation — gave to it all the life and power it ever had or could possibly 
have; and they put it in operation by electing and sending their citi- 


SOCIAL-COMPACT FALLACIES. 


293 


zens and subjects to exercise, as “ substitutes and agents,” the powers 
they, the said states, delegated. 

Then, as each state made her home government, it is certain that 
the American polity was the government of states by themselves, — 
jointly in general affairs and severally in domestic ones. 

And it must strike the reader, that if these societies are still prov¬ 
inces or counties, or under external control in any sense or particular, 
they revolutionized against Britain in vain ! If their only status and 
powers are (as “ the school,” through Lincoln, assert) fixed by the 
nation in its constitution, not only the several states are provincial¬ 
ized, but “ the united states,” the very association declared to be “ the 
government,” are subjected to the nation, and are under the arbitrary 
power of that nation’s agency, which, according to Webster and Cur¬ 
tis, decides finally on all questions as to its own power. [See pp. 160, 
202, supra .] Appeals to the nation, even if possible, would not be 
prompt and practical. It has no will and no capacity for action. 
Remedy should be right at the heels of wrong, especially in such 
matters as liberty and sovereignty. Civitas ea in Ubertate est posita, 
quce suis stat viribus , non ex alieno arbitrio pendet. 1 [Livy.] 

1 “ That state alone is free which stands upon its own strength, and does not depend 
on the arbitrary will of another.” 


CHAPTEE IY. 


SOCIETIES ARE SOVEREIGN. 

A LL our history and governmental philosophy teach, as we have 
seen : — 

1. That republican sovereignty resides in, and never leaves, the 
people. 

2. That “ the consent of the governed,” referred to in the Declara¬ 
tion of Independence, as the only just basis of the government, is the 
consent, or rather will, that forms society and institutes government. 
The people consented, or rather willed into being, agencies, both for 
their federal and their state affairs. 

3. That “ the people of the united states.” politically exist and act 
only as commonwealths. 

4. That, as commonwealths, they “ ratified,” and thereby “ ordained 
and established,” the constitution. 

5. That they federally associated, in the character of sovereign 
commonwealths, to govern themselves, conjointly in general affairs, 
i. e. to act as a union of republican states, or a “ republic of republics ; ” 
while each continued to govern herself in all home affairs. 

All our history is consistent with this view, especially the unani¬ 
mous declaration of opinion of the convention of states of 1787, that 
“the united states ” are “the government,” and that the name, “the 
united states,” means the people as states, and not the people as a 
state or nation. [V. Ell. Deb. 377, 382.] 

Now, having seen precisely where sovereign mind or will is, having, 
in other words, seen the body in which it dwells, and the exclusively 
functional character of its action, let us note how it manifests itself 
in our republican government. Look at the necessary 

Grades of Authority. — All people agree that sovereignty made 
the constitution, federal as well as state, and that this instrument 
provides for, directs, and controls the government, which in turn rules 
the persons and things subject to it, i. e. the people and their belong- 


SOCIETIES ARE SOVEREIGN. 295 

ings. To illustrate, I will draw four horizontal lines, to represent the 
different grades spoken of: — 

SOVEREIGNTY —THE PEOPLE. 

1 ---- 

THE CONSTITUTION. 

2 ■ — ■■■ .1 

THE GOVERNMENT. 

3 — —. — 

THE PEOPLE AS SUBJECTS. 

4 .. ■ ■ ■ ■! I . 


We see here that the people govern, and the people are governed. 
This necessitates, in each republican citizen, two capacities, one cor¬ 
porate and political, and the other personal. In the former, he is a 
member and an integral part of society, and therefore a part of the 
governing authority, and in the latter he is a subject. It is, however, 
only as a commonwealth that the citizens have political sovereignty, 
this being only predicable of an organized community. 

An amusing Mistake. — Owing to ignorance or forgetfulness of 
this double capacity of citizens, our modern so-called statesmen, in 
their expositions of the constitution, make most amusing mistakes. 
Mr. William M. Evarts, in defending President Johnson against im¬ 
peachment, in 1868, thus alludes to the people: “Masters of the 
country, and masters of every agent and agency in it, they bow to 
nothing but the constitution.” By not heeding the above distinction, 
he makes the people, in their governing capacity, bend the knee to 
their own authority, — a genuflexion impossible even in Utopia, and 
the very one alluded to by Gov. James Sullivan, of Massachusetts, as 
follows : “You may as well attempt to erect a temple beneath its own 
foundations as to erect a government with coercive power over itself.” 
[Amory’s Life of Sullivan, Vol. I. p. 231.] Hon. A. H. Stephens makes 
the same error in his “ War between the States ” [Vol. I. p. 40] : “ The 
exercise of supreme law-making power, even over the authority dele¬ 
gating it, may be legitimate, so long as the delegated power is unre¬ 
sumed.” This simply means that so long as sovereignty allows its 
delegations to remain in its created agency, it is subject to the govern¬ 
ment and coercion of that agency. By parity of reasoning, if Mr. 
Stephens were to give his son, or head-servant, authority over his 
household affairs, it could be used to command him, and coerce his 
obedience. But Mr. Stephens only follows, though he does not cite, 
illustrious authority. The Supreme Court of the United States, in 
McCulloch vs. Maryland [4 Wheaton, 316], says: “The government 
of the union is a government of the people. It emanates from them, 
its powers are granted by them, and are to be exercised directly on 






296 


SOVEREIGNTY IN THE UNITED STATES. 


them, and for their benefit.” Recently, the so-called national supreme 
court have made the error more flagrant and hurtful, completing the 
perversion, as follows : “ Citizens are members of the political com¬ 
munity to which they belong. They are the people who compose the 
community, and who, in their associated capacity, have established or 
SUBMITTED THEMSELVES TO THE DOMINION OF A GOVERNMENT,” etc. 
In other words, they are subject, as states, and as united states, in 
the same degree that they are as individual men, to the dominion, 
i. e. the “ absolute supremacy ” of the government they established I 
Many similar quotations might be given, for this idea is very common 
with “ the expounders ” and their confiding followers. It is, indeed, 
an essential part of the expounding theory; and it is a mystery how 
Mr. Stephens, who is really on the opposite side, could have mixed 
such an error with his truths. The advocates of this theory dare not 
reason about the two capacities of citizens, for it suggests two lines 
of thought, both of which lead inevitably to the body-politic, in which 
the citizen is absolutely merged, and in which sovereignty must dwell; 
to the fact that the state is the only such body ever formed; and to 
the conviction that the said “expounders,” in promulgating such 
theory, intended to mislead, or did not understand the subject. 

The People govern the People. — They, as sovereign society, 
govern themselves as subjects. Any member of an ordinary corpora¬ 
tion who can think, will readily see the two capacities, because he is 
a constituent or integral part of the moral or jural person, which the 
body corporate is, while he is, as a natural person, subject to whatever 
authority the corporation has, and holds no right whatever to the 
franchise and the property of the body; and he has simply a right to 
vote, to help make up the mind and express the will of the said cor¬ 
poration. So, in the republic, the member is an integral part, and 
holds his undivided share of the governing power, while in every per¬ 
sonal act he is a subject, even voting as such under, and by virtue of, 
the commonwealth’s law, to help express the will of the body-politic, 
just as members of an ordinary body corporate do, under their charter, 
to reach the conclusum universitatis. 

The federal constitution itself, as I have shown, recognizes every 
person, who has a civil or political status, as a member and citizen of a 
state. \Sup?'a, 151.] Hence, I divide the upper line, representing the 
people, i.e. the sovereignty, into thirteen parts, viz. : New Hampshire, 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South 
Carolina, and Georgia, and draw a line from each to the constitution, 
to indicate the impartation of life and validity to that instrument. 
Then, the above illustration would be thus modified : — 


SOCIETIES ARE SOVEREIGN. 


297 


THE PEOPLE AS SOVEREIGN COMMUNITIES. 


N.H. 

MASS. 

R. I. 

cr. 

N. Y. 

N. J. 

PA. 

DEL. 

MD. 

VA. 

N. C. 

s. c. 

GA. 






THE 

CONS 

TITUT 

ION. 






THE GOVERNMENT. 


THE PEOPLE AS SUBJECTS. 


This precisely shows the system contemplated. The republics were 
to remain uppermost, unconsolidated, sovereign, and self-joined. They 
themselves were to govern, and the institutions of government were 
the constitutions of so many agencies. There can be no evasion or 
denial of this statement, for the absolute and independent act of each 
state’s w T ill, through her convention, ratifying and establishing the 
constitution, as to herself and her people, is shown in Part II.; and 
these independent acts, at different times during three years, are 
shown to be the only acts giving existence to the federal system. 
The system, therefore, is to be treated as the offspring of the mind 
and will of the people, whom God has commissioned to govern them¬ 
selves, and is to be regarded as the most sacred of earthly things, — 
the very ark of the covenant! 

The People, then, are subjected, if the treasonable theory under 
notice be carried out; and the fence — to use a homely but expressive 
figure — must be reset, according to the formula of the “school,” 
according to the notions of President Lincoln, and according to the 
manifesto of the Philadelphia conclave of 1866, as follows : — 

THE CONSTITUTION. 


THE GOVERNMENT, (absolute supremacy.) 






jTHE :QUONiDAM : STAT;ES. ; 



N. H. 

MASS. 

R. I. 

CT. 

N. Y. 

N. J. 

PA. 

DEL. 

MD. 

VA. 

N. C. 

S. C. I GA. 


Not a word in history favors such a collocation of the grades of 
authority; and, as the states individually covered the whole ground, 
and collectively devised, and afterwards individually ratified, and 
thereby “ ordained and established ” the constitution, and delegated 
powers to its agency, it is absolutely impossible that a nation, or 
republic composed of the self-same people, should have done the same 
thing at the same time. 























































298 


SOVEREIGNTY IN THE UNITED STATES. 


Besides, as Webster admits, “sovereignty in government is un¬ 
known in North America.” The real government is the republics, 
wherein sovereignty ever dwells. They virtually said : “We will 
unite and govern our subjects as if a nation, in a certain number of 
respects; but the quasi nation is, of course, the offspring of our sove¬ 
reign w T ills.” Just as they did, the sovereigns of Europe could do, 
without placing the agency above themselves, or making an indis¬ 
soluble union. What is to prevent their governing their aggregate 
people, as if a nation ? Sovereignty is always and everywhere of the 
same nature and supreme. 

Madison is conclusive on this subject, in Number 39 of the Feder¬ 
alist. “Each state,” says he, ratifies, “as a sovereign body, inde¬ 
pendent of all others, and only to be bound by its own voluntary 
act; ” and therefore he asserts it to be “ a federal, and not a national 
constitution.” The italics are his. Furthermore, after dealing with 
the establishment, the parties, and the powers vested by the states, 
he says: “ In the operation of these powers, it is national, not fed¬ 
eral.” In other words, as to these powers, the states govern their 
subjects as if a nation. The reader who desires to stand on truth 
and common sense, should study Number 39 of the Federalist. [See 
App. D.] Let him also note Madison’s statement in the Virginia 
ratifying convention, that this is “ a government of a federal nature, 
consisting of many coequal sovereignties.” [III. Ell. Deb. 381.] 

All publicists speak idem sonans on this subject. Says Yattel: 
“Several sovereign and independent states may unite themselves 
together by a perpetual confederacy, without each, in particular, ceas¬ 
ing to be a perfect state.” Their “ deliberations in common,” he con¬ 
tinues, in no wise abate “ the sovereignty of each member,” though 
“ the exercise of it ” may be diminished, “ in virtue of voluntary en¬ 
gagements” Montesquieu, Brougham, De Tocqueville, and Lieber 
speak to the same effect. 

The Subjugation of the Commonwealths, above depicted, has 
been wrought by their members, their citizens, their subjects, their 
“ substitutes and agents,” — “ bone of their bone, and flesh of their 
flesh ! ” These traitors say that “ the government,” meaning them¬ 
selves, has “ absolute supremacy ” over people and states, so far as its 
powers go, it being itself judge of how far that is, and having the right 
to preserve itself; that the states are counties, with no status or rights, 
except what “ the nation reserves to them in its constitution.” 

In short, they say precisely what the above illustration does ; and 
we, the victim-people, are reprovincialized, while all the fourth-of-July 
thunders of the last hundred years have become as unmeaning as 
they were harmless. Britain holds provinces mainly for commercial 


SOCIETIES ARE SOVEREIGN. 


299 


advantages. She wants these, without much of the burden of gov¬ 
ernment and protection. She has precisely the politico-commercial 
arrangement she wants, while we — happy people ! — have the glory 
of a corporate, in exchange for a personal, king! 

“ National Sovereignty ” no better. — The perverters gain nothing 
by saying, “We mean national, instead of governmental, supremacy,” 
because no power or means was ever provided, or contemplated, for 
its enforcement over states, by coercion of any kind; while not only 
was such coercion intentionally kept out of the system, but was 
severely reprobated, and most carefully guarded against, as will be 
seen. The fathers strongly condemned this very idea of coercing 
states, whenever it was presented, especially in the convention of 
1787, as well as in the several ratifying conventions, and carefully 
excluded it from the constitution. [See Part III., Ch. VII.] More¬ 
over, fearing its possible rise from implication, they counselled and 
induced the states to adopt Amendments IX., X., and XI., to forefend 
the danger. But this important matter will be distinctly treated, for 
it involves absolute and independent proof of the sovereignty of the 
states in the union, while as a crucial argument, testing, as it were, 
previous ones, it will be found invincible. 

Though the above theory of the expounders is testified to by a 
“ cloud of witnesses,” namely, all American politicians, yet any child, 
of larger or smaller growth, will see, by looking thoughtfully at the 
above illustration, and what the four lines symbolize, that it is as 
impossible for government to get above and control sovereignty as it 
is for Mr. Stephens to carry himself, a girl baby to be its own mother, 
or a bottom-rail, ex proprio vigore , to get on top. The simplest mind 
can readily see that it was, with the fathers, an accepted principle that 
the states are not subjects of government, but are themselves the gov¬ 
ernment, — being republics or self-governing peoples, acting through 
representatives, i. e. “ substitutes and agents,” and that this was why 
they kept coercion of states out of the constitution. And such mind, 
even with cursory reading, must see that Washington, Hamilton, 
Madison, and all the rest of the fathers, considered “ the people of 
the united states,” as organized, as the top rail (to repeat the striking 
figure), the constitution as the second, the government as the third, 
and the people and their belongings as the bottom one, and must, 
therefore, despise the statement that “ the government ” has, in any 
sense, or over anything whatever, “ absolute supremacy,” as was as¬ 
serted by the Philadelphia convention of 1866. Nay, more, such 
mind will insist on “ the expounders ” proving the when and the how 
of the change, from the admitted voluntariness of the “ union of states,” 
to the present alleged involuntariness thereof! 


300 


SOVEREIGNTY IN THE UNITED STATES. 


“The Government” claims to be Paramount.— To realize the 
enslavement of the states by the corporate despotism, read the follow¬ 
ing from the Philadelphia convention’s address of 1866, in the light 
of Lincoln’s views, the legislation of the last fifteen years, and the 
recent dicta of the federal supreme court, to be presently quoted : “In 
two most important particulars, the victory achieved by the national 
government has been final and decisive. First, it has established 
beyond all further controversy, and by the highest of all human sanc¬ 
tions, the absolute supremacy of the national government, as defined, 
etc., and the permanent integrity and indissolubility of the federal 
union,” etc. 

Furthermore, not only have the congress and the President, without 
the warrant of the constitution, or even of the amendments, old or 
new, claimed supremacy over the states, single or united, but the 
federal supreme court, the last hope of state defence, decides that the 
government is “ a government of the states in their political capacity,” 
“ is supreme and above the states ” to the extent of its powers, that ex¬ 
tent, according to all these perverters, to be determined finally by the 
Government itself. [United States vs. Cruikshank, 1876.] 

The Preamble and Article VII., with the ellipses filled according 
to fact, would be as follows: “We, the people of the united states 
[as socially organized and capacitated to act, each state exercising her 
sovereignty], in order to form a more perfect union [of such states 
than the previous one], establish justice, insure domestic tranquillity, 
provide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do ordain 
and establish this constitution for the [said] united states of America.” 
Article VII. is consonant. “ The ratification of the conventions of 
nine [of the thirteen] states shall be sufficient for the establishment 
of this constitution, between the states so [i. e. by conventions] rati¬ 
fying the same.” 

Societies of People unquestionably ratify, and thereby “ ordain 
and establish ” the constitution; and hence, before the supreme sove¬ 
reignty of the people, as commonwealths, the fasces must always be 
lowered. It is as true as Heaven or Deity, that these states, of their 
own volition, federalized themselves. It is equally true that, as the 
states voluntarily bound themselves as united states, so bound must 
they remain, if they be republics, free states, self-governing people. 
How is it that, in 1788, these states were in the top grade of author¬ 
ity, when 1861 found them in the third 1 What words, figures, or 
meanings of the constitution were changed between the two epochs 1 

Experimentum Crucis. — The truth of the above collocation of 
grades can be strikingly and decisively proved to the simplest mind 


SOCIETIES ARE SOVEREIGN. 


301 


by an experiment — a crucial one. Let him trace the authority of a 
sheriff, or United States marshal, through all the links up to the 
original source, keeping it in mind that at or before the adoption of 
the state, or the federal, constitution, the people were never organized 
except as states, and had no capacity whatever for political action, 
except as such. The said state ( i . e. the collective people) investi¬ 
gates, reasons, judges, and wills through a convention. This, by vote, 
determines and speaks her will, as an independent political unit. 
Thus, a convention adopted a federal constitution for a given state, 
and a convention adopted the state one. Hence, the chain in the two 
cases will appear pictorially as follows : — 



To establish their respective state constitutions, the states acted 
separately. To establish the federal one, they acted independently in 
power, time, and place, but conjoining their wills in the ordaining of 
it. The last has no other life and power than that derived from the 
states. History, by showing this, proves the system to be a federation 
of sovereignties. 

If we , in the above mode, start from any federal institution or 
functionary, and go up through the chain of actual and historical im- 
partations of power to the source of all authority, we shall inevitably 
reach the self-organized and self-governing commonwealths of people. 
Look at that stupendous enginery of power, the army and navy, for 
instance. They are controlled by their officers, and these by the 
commander-in-chief. Is he sovereign 1 ? No; he and they are alike 
under a law, hired, told what to do, and paid wages. Is “the govern¬ 
ment,” the legislative part of which made the law, sovereign? No; 
the congress and president, as well as the judiciary, are provided for 
and authorized in the constitution, and are engaged, as persons, for 






302 


SOVEREIGNTY IN THE UNITED STATES. 


service, at stated wages, told what to do, and paid for their work. Is 
it the constitution, then, that is sovereign] No; this is a funda¬ 
mental law, ordained by conventions. Are (or were) these sovereigns ] 
No; they were mere delegative bodies, acting for the people, i. e. the 
states, — the said people being only organized and capacitated to act 
as states. As such, they exercised their wills upon a plan or system 
they themselves had had prepared, and ordained and established the 
same, as their federal (or league-al) constitution. Such wills existed 
and operated within them, and survived the act of establishment, to 
watch the workings of the system, and amend (according to the pact) 
or abolish, as might be deemed necessary. Each, according to its 
nature, must act for itself. It cannot bind itself not to act, — cannot, 
indeed, relinquish the right of reversing its will, and dissolving its 
self-imposed tie. 

Complete Corroborations. — Whenever the above test is applied, 
the states themselves will appear as the real sovereignty and govern¬ 
ment of the country. They must be the government, because they are 
republics, that is, self-governing bodies of people. And the federal pact 
entirely corroborates this view, by calling the system “ the united [i. e. 
associated] states,” and the agency of it, “ the government of [i. e. be¬ 
longing to] the united states,” to say nothing of the fact heretofore 
mentioned, that the convention of 1787 unanimously declared that the 
government, under the constitution, was to be, and to be styled, “ the 
united states .” [Supra, 201.] 

The government, then, is states, — “ the united states,” — and the 
institution at Washington necessarily an agency or joint-commission. 
The right of this thing to be, and act, was “ written by the mighty 
hand of the people ” [federal supreme judge, Patterson], and, if it 
swerve one hair from its authorizations, the mighty foot of the people 
should crush it! 

Again, as above shown, the constitution and Amendment X. prove 
that there are no powers out of the people but delegated ones; so 
that the whole government must be acting with “powers,” foot its 
own, but belonging to superior authority, — i. e. the people, — whether 
as a nation or as states. 

1 What is a “power” ? In a procuration, a commission, a compact, a deed, a con¬ 
stitution, a will, a lease, or any other instrument, it is an “ authority, w'hich enables one 
person to do an act for another.” [See Burrill’s Law Die.; Sugden on Powers; Kent’s 
Com.] The only valid acts, then, of “the government ” consist in using the powers of 
and acting for, the superior authority it represents, i. e. the people. 

The first federal chief justice, John Jay, not only recognized that the delegations of 
power were made by the state to the united states, and not to the government, but he 
declared that this joint-agency received “that part of the people’s business ” intrusted 
to them, “ not for themselves , but as the agents and overseers for the people." These 
are his very words. [See his address to the people of N. Y., I. Ell. Deb. 496.] 




SOCIETIES ARE SOVEREIGN. 


303 


Again, the persons who compose “ the government ” are members 
and citizens of the separate states, who emerge from them to serve as 
their agents during a term, or good behavior, and then are lost, as drops 
in the sea. And it is these ephemera — “ insects of the hour ” — who 
claim absolute supremacy over, and the allegiance of, the very com¬ 
monwealths that breathed them into being! It is these creatures 
that claim the right to draw from their sovereigns and creators, the 
men and means to subjugate them with. It is they who claim the 
sovereign and final right to decide the extent of their own powers, 
and the right, in cases of necessity, of which they are to judge, to 
exercise all the powers outside of the constitution. 

A fit Summing up hereof, by James Wilson. —This government, by 
the commonwealths, of their people, is our polity, which “the school” 
have long tried to conceal. James Wilson, one of the profoundest 
statesmen and jurists of the era of the constitution, presented the 
grades I have indicated as follows [II. Ell. Deb. 432]: “ To control 
the power and conduct of the legislature, by an overruling constitu¬ 
tion, was an improvement in the science and practice of government, 
reserved to the American states. Perhaps some politician, who has 
not considered with sufficient accuracy our political systems, would 
answer, that in our governments the supreme power was vested 
in the constitutions. This opinion approaches a step nearer the 
truth, but does not reach it. The supreme, absolute, and uncon¬ 
trollable power remains in the people. As our constitutions are supe¬ 
rior to our legislatures, so the people are superior to our constitutions. 
Indeed, the superiority, in this last instance, is much greater, for 
the people possess, over our constitutions, control in act, as well as 
right. 

“ The consequence is, that the people may change the constitutions 
whenever and however they please. This is a right of which no posi¬ 
tive institution can ever deprive them. To the operation of these 
truths we are to ascribe the scene, hitherto unparalleled, which 
America now exhibits to the world, — a gentle, a peaceful, a volun¬ 
tary, and a deliberate transition from one constitution of government 
to another. . . . Oft have I marked, with silent pleasure and admira¬ 
tion, the force and prevalence, through the united states, of the prin¬ 
ciple, that the supreme power resides in the people, and that they 
never part with it.” 

He referred alone to the people as commonwealths, and character¬ 
ized them as “ thirteen independent sovereignties,” in his great speech 
of October 6, 1787, — the first, most conspicuous, and most impor¬ 
tant speech that was made in advocacy of the federal system, after its 
promulgation on the 17th of the previous month. [See Am. Mus., 


304 


SOVEREIGNTY IN THE UNITED STATES. 


Vol. I.; Mass. Cent., Oct. 24,1787.] His fundamental idea ever was, 
that the sovereign “ power is in the people before they make a consti¬ 
tution, and remains in them after it is made.” [See Part II. Ch. VI., 
passim.~\ 

We have presented to us, then, by this great constitutionist — 
and all the leading fathers were consistent with him — precisely the 
grades of authority I have set forth : — 

1. The people, as sovereign states. 

2. Their federal constitution. 

3. The government provided for in it. 

4. The people as subjects, and their belongings. 


CHAPTER Y. 


SOVEREIGNTY ONE AND INDIVISIBLE. 

W HATEVER was done in establishing the constitution of gov¬ 
ernment must have been done by sovereignty. Of course, I 
speak of voluntary action, i. e. free exercise and effectuation of will. 
So that, if any sovereignty was put in the federal pact, sovereignty 
must, ex mero motu, have divided itself. It must have exerted its 
will, whether it intended to divide itself or delegate powers. When 
this will was exerted, the constitution was made and established, and 
the said will necessarily existed through the act. We know, then, that 
it was not sovereignty, but something else , that was put, by sovereignty , 
in the federal pact. The instrument itself says it was “ powers,” and 
that they were “ delegated.” “ Powers,” then, were transferred, while 
the will that did it remained untransferred, in the moral person or 
persons that acted. We know it did thus remain, for it was exercised 
by each state on the proposed amendments, several years afterwards. 
Here, then, we have absolute proof that there is no sovereignty in the 
constitution , and that sovereignty is out of it, and in the states who ratified 
and ordained it. 

Imagine Kaiser William’s Authority divided.— According to 
philosophy and common sense, the essential idea of the superlative 
word “ sovereignty ” is of a will that rules over everything in its ter¬ 
ritory ; and this will presupposes all the other attributes of a perfect 
mental unity, through which those conclusions of judgment shall be 
made, and those determinations of will reached, which are indispensa¬ 
ble in government. Through just such a mental unity, William of 
Prussia commands every person and thing in his kingdom. His right 
of command must be a unity; and to think of what can be maintained, 
in defiance of his will in his own realm, is to think of what does not 
divide, but destroys sovereignty; for even if the cap of Gesler can be 
kept in the market-place, as an emblem, against his will, he is not 
sovereign, for an opposing will has risen above his own , with all infini- 

20 


306 


SOVEREIGNTY IN THE UNITED STATES. 


tilde to expand in, for domination over what is beneath. The sove¬ 
reign entity, i. e. the mind or soul having the right of command, 
is the same (with its perception, reason, judgment, and will) in an 
aristocracy, and a republic, as in a monarchy. 

What say the Publicists ? — As they all agree, one or two quota¬ 
tions from those of the highest repute will suffice. Vattel says [Book I., 
§ 65] : “ Every sovereignty, properly so called, is, in its own nature, 
one and indivisible.” Lieber, in his “ Civil Liberty and Self-govern¬ 
ment ” [Ch. XIV.], says : “ What, in a philosophical sense, can truly 
be called sovereignty can never be divided.” In his “ Political 
Ethics” [§ 63], he says : “Society can never delegate or pledge away 
sovereignty; ” and that “ being inherent naturally and necessarily 
in the state, it can never pass away from it so long as the latter ex¬ 
ists.” See also Montesquieu, Locke, Puffendorf, Burlamaqui, Ruther- 
forth, Rousseau, and others. 

Enough is now said and quoted to exhibit the mental unity, the 
moral person, which dwells in one of our societies or states, as its soul, 
this being sovereign, and acting so continually, through the mental 
organism and faculties already brought to view. 

Any thinking man can see that sovereignty’s exercise of its right of 
government is functional, and involves no change of itself, in place, 
nature, or right, much less does it divide and conquer itself, commit¬ 
ting felo de se. The British sovereignty, the Queen and Parliament, 
remains at home, in its institutional body, wffiile its governmental 
agents and agencies go all over the world, bearing and executing 
“ powers.” Sovereignty is ever with and in the Czar of Russia, while 
his agents, with “ powers,” govern throughout the empire. That of 
Prussia went to oversee the pounding of France with Thor’s hammer. 
But, though its presence may have increased directing intellect and 
moral force, it made the shot and steel no more deadly. While' one 
set of sovereignty’s agents were using its “ powers ” to kill and con¬ 
quer abroad, another set were using its “ powers ” to govern at home. 
Of course, republican sovereignty must act in the same way, through 
“powers ” given to agents to be executed by them. Said Chancellor 
Pendleton : “ The people are the fountain of all power. They must, 
however, delegate it to agents , because . . . they cannot exercise it in 
person.” [III. Ell. Deb. 298.] 

Rights and Powers are not Sovereignty. — All difficulties would 
disappear from this subject,, if we would discard the idea that sove¬ 
reignty is composed of, or can be divided into, rights and powers. 

The general notion of the expounders seems to be, that sovereignty 
is the sum of all rights and powers, — “ the embodiment of all pow¬ 
ers,” to use Mr. A. H. Stephens’s expression. They (and he, too, un- 


SOVEREIGNTY ONE AND INDIVISIBLE. 


307 


fortunately) confound it with the powers which, by delegation and 
in writing, it entrusts to the governmental agency it creates. They 
admit the transfer to be by delegation, but say this is a ceding of a 
part of sovereignty, and irrevocable. Witness the absurdity. The 
people cannot govern directly : they can do it only by and through 
this very process of delegation. Now, supposing all their governing 
powers, federal or state, to be in exercise, the result of such theory 
would be as follows : If they put one-third of them in the federal con¬ 
stitution, one-third of their governing power is “ irrevocably ” gone. 
The residue of two-thirds being vested in the state governments, by 
precisely the same process, through state conventions, the people have 
abdicated all of sovereignty, put an end to the republican form of 
government (which can only exist where they keep the sovereignty 
and govern absolutely at all times and in all things), and reduced 
themselves to allegiant subjects of agencies, which they themselves 
created and empowered, — the federal one being paramount, impe¬ 
rial ! 

The effectuation of this theory, then, is the annihilation of sove¬ 
reignty. This is the reductio ad absurdum ; for sovereignty, whether 
it is that of a nation or of states, must always be supreme over every 
person and thing; and, as long as the republic lasts, it must remain 
in the people as organized, they choosing to politically exist as states, 
and to govern themselves as such, — separately as to domestic affairs, 
and conjointly in general and common ones. This is the view of all 
the fathers. 

Sovereignty is not Qualifiable or Limitable. — The dogma that 
the states have sovereignty, except so far as they have ceded it, if not 
intended as a deception, is a gross and deplorable blunder; and the 
following expressions, to be found in the speeches and writings of all 
American politicians of note, are both amazing and amusing for their 
solecistic absurdity : “ Divided sovereignty,” “ delegated sovereignty,” 
“qualified sovereignty,” “limited sovereignty,” “representative sove¬ 
reignty,” “federal sovereignty,” “sovereign powers vested in the gov¬ 
ernment,” “surrendering essential parts of sovereignty,” “dividing 
sovereignty between the federal and state governments,” “the states 
are sovereign, except so far as they have delegated specific sovereign 
powers ” [Webster], “ each state is absolutely sovereign, except as to 
the limited supreme sovereignty conferred upon the national govern¬ 
ment ” [Story]; and so on, through an immense number and variety 
of expressions, all absurdly coupling sovereignty with some qualifying 
word or phrase, or treating of it as susceptible of infinite division, in 
contempt of the great philologists of the age, who all unite in con¬ 
sidering the word superlative in signification, and the entity referred 


308 


SOVEREIGNTY IN THE UNITED STATES. 


to as indivisible and inalienable. [See also the opinions of Judges 
Taney and McLean, 5 How. 588; 21 How. 516.] 

We shall soon see that sovereignty is indivisible, and is not com¬ 
posed of, or identical with, rights or powers. Society’s sovereignty 
must be its supreme will over, and, so to speak, ownership of, all per¬ 
sons and things that are put therein. Like ownership, it involves the 
right of control and command, as well as, to a certain extent, the jus 
disponendi. Will must be exercised, and must have its mental ad¬ 
juncts,— perception, reason, and judgment. Can this mental unity 
be disintegrated, so that a part of the faculties can be alienated, and 
the rest retained 1 Can the subject persons and things be partitioned, 
so that some can be under one supreme will and some under another ? 
Can a citizen yield his obedience to more than one ultimate authority 'l 
Common sense answers these questions negatively. Two sovereigns 
cannot have the same subject. No man can serve two masters. But 
one paramount authority can exist in any country. In a republic, 
this must reside in the state. It does so in the united states. New 
York, Texas, or Illinois is, of right, as absolute as King William or 
the Grand Turk. 

Only one Sovereignty over all Persons and Things. — To illus¬ 
trate this, let us first draw a line from A to B, to present the domain 
on which sovereignty is to act, say the area of a state : let C repre¬ 
sent the national government, and D the state one. Assuming each to 
have sovereignty (I do not mean mere government, but the original and 
absolute right of government, •— the “ all-power,” which carries right of 
coercion) over the same territory, as the following figure indicates; 
inasmuch as they are human, A to B must be a debatable ground, 
must comprise many points of controversy, and must, finally, become 
“ a field of blood.” 



Our fathers were guilty of no such folly. They always considered 
the people, and not the governments, as sovereign. They, like Daniel 
Webster, said : “ Sovereignty in government is unknown in North 
America.” Hence, the diagram is reproduced, and extended as fol- 



SOVEREIGNTY ONE AND INDIVISIBLE. 


309 


lows, E representing the people, i. e. the sovereignty, the source of 
all government, and C and D its governing agencies : — 


E 



Between the two governments, there can be no conflict that requires 
the ultima ratio to settle the question of sovereignty, for they are both 
subordinate agents of the people, who themselves have th z jura summi 
imperii [Blackstone] in their respective political organizations. Each 
is employed and paid to exercise its agency over the whole state, just 
as two servants might be set at work in the same field; and the said 
sovereignty can, as to both agencies, assign duties, control, and prevent 
conflicts. This was the view of the fathers. For example, Madison 
said, no one dissenting, that “the federal and state governments are, 
in fact, but different agents and trustees of the people, instituted with 
different powers ” [Fed. 46], the said people “ composing thirteen in¬ 
dependent sovereignties,” and making the constitution in such sove¬ 
reign capacities. [39 and 40 Fed.; III. Ell. Deb. 94.] Chancellor 
Pendleton and Judge Marshall, in the Virginia convention, explained 
in the same way; so did Chancellor Livingston and Alexander Ham¬ 
ilton, in New York. [Supra, 93, 107, 108.] Both constitutions of 
government were considered part of the fundamental law of a com¬ 
monwealth, and the two were characterized as “a great political 
machine.” [Read extract from No. 46 Fed., App. D.] 

Sovereignty, then, cannot divide itself. Nothing can be excepted 
from its jurisdiction. And, especially, it cannot become subject to 
the coercive authority of its own delegations; and it is only enemies 
or perverters that could pretend that the commonwealths, called the 
united states, have become so subject. If sovereignty can be di¬ 
vided, it can be done in an aristocracy or a monarchy, as well as a 
republic, for in each and every case it dwells in a unit}' or “ moral 
person.” The king is the state ; the queen and parliament are the 
state ; the aristocracy is the state; and the republic is the state. In 
each there must be a will, a sovereign one, or there is no state. 



310 


SOVEREIGNTY IN THE UNITED STATES. 


Sovereignty’s Delegations. — It is obvious that the rulers ill our 
system must be “ substitutes and agents ” of the people, as all the 
fathers, and all the people, in their constitutions and bills of rights 
declared them to be. 

Massachusetts said, in her first constitution, as she has done in all 
of them since : “ All power residing originally in the people, and being 
derived from them, the several magistrates and officers of govern¬ 
ment vested with authority, whether legislative, executive, or judi¬ 
cial, are their substitutes and agents, and are at all times accountable 
to them.” 

These “ substitutes and agents ” being and acting in a representa¬ 
tive capacity, must, in all their legitimate actions as such, have used 
“powers” not their own, but belonging to those whose “ substitutes 
and agents ” they were, and whose members, citizens, and subjects 
they must have been, — that is to say, the commonwealths. 

Remembering, then, that the commonwealth, i. e. the people-gov¬ 
ernment, aimed to govern itself in the most methodical and the safest 
way, let us suppose that she, by virtue of that sovereignty which all 
the states agreed that each possessed [First Fed. Const., Art. II.], 
and with a view to rule through her agents, had caused her powers 
to be carefully prepared, in written form, by her ablest jurisconsults, 
and labelled, numbered, and pigeon-holed. The following diagram 
will present the conception. When the process of constituting gov¬ 
ernment, and endowing it with trusted powers, begins, the repository 
or treasury is full, and contains 120 formulated “powers.” 

Now suppose the commonwealth, which thus chooses, to have a 
treasury of prepared powers, which she may as easily have, as a coffer 
for her money or a strong-box for her titles, puts in her state govern¬ 
ment 67 powers ; 23 in the agency of herself and sisters for federal 
government; and retains the rest,—prohibiting the use of all powers 
not thus entrusted, and exacting an oath of every official to use and 
not to use “ powers,” just as the said organic law requires. Keep it 
in mind that every official is a member, a subject, and a chosen agent 
of a commonwealth. And every delegated power is an entity , and a 
trusted delegation of a commonwealth. 

The “powers” numbered 1 to 67 inclusive, are trusted to the state 
governmental agency, thus really forming the state constitution; and 
those numbered 68 to 90 inclusive, are trusted to the united states, 
to be administered by their agency; the rest remain in the repository, 
as indicated by the little figure in each pigeon-hole from 91 to 120 
inclusive. [See illustration on opposite page.] 

The following corollaries are so plain that he that runs may 
read: — 



itmnunmiinnii 


umiiliLiliUiJilUi 


..II llIJiUUM 















































































































































































































































































































































































































































































SOVEREIGNTY ONE AND INDIVISIBLE* 


311 


1. “Reserved,” or “retained” [see Fed. Const. Amendments IX. 
and X.], necessarily means kept out of the constitution and in the re¬ 
pository. Hence the absurdity of state rights and powers, not dele¬ 
gated, being reserved in the federal pact; and of “ state sovereignty 
being effectually controlled ” thereby. 

2. As the same mind creates both agencies, and delegates both sets 
of powers, conflicts of jurisdiction should seldom occur. 

3. If a ruler take a prohibited power from a state’s repository, it 
seems — like theft or burglary — a crime ! 

4. Moreover, the use, by rulers, of reserved powers is perjured 
usurpation. 

5. The status of the commonwealth is not changed by the federal 
pact, and she has all the authority she ever had, — the only powers 
out of her, being temporary delegations or trusts. 

6. President Lincoln, misled by Story, Webster, and Jackson, was 
grossly in error in thinking states like counties, with only such status 
and rights as are “ reserved ” to them by the federal constitution. 

7. President Jackson was mistaken in thinking that the mere dele¬ 
gation of powers to trustees and agents by a commonwealth, was a 
transfer of citizenship, and consequently a dissolution of the state; 
for the citizens are the state, and the state is the citizens. 

The investigating and thoughtful reader will find entire support to 
the above illustration in the following authorities : — 

Amendment X. of the constitution declares that 11 all powers not 
delegated to the united states . . . are reserved ,” etc. — showing, 1st. 
That no powers but delegated ones are in the instrument. 2d. That the 
only delegator must be the then sovereign state that was to ratify, and 
thereby establish. 3d. That there was no delegatee but the united 
states, and that hence the acting government is an agency. 4th. 
That all powers and rights not put in the constitution, were kept out 
— i. e. “retained” and “reserved” — as expressed in Amendments 
IX. and X. 

Next read the unanimous letter of the convention to congress, char¬ 
acterizing the whole federal instrument as “the delegating of an 
extensive trust.” 

Next read Chancellor Pendleton, supra , 107; III. Ell. Deb. 298, 
299, 301 — the last especially; also Madison, Federalist, 39, 40, 46 ; 
and Marshall, III. Elliott’s Debates, 227, 233. 

Next read Governor Bowdoin and Theophilus Parsons, supra , 84. 

And, finally, look at the statements of the three greatest of New 
York’s sons, in the light of the following, which she has declared 
and re-declared from 1776 to this day, and which every true son of 
New York will defend, and ought to defend, to the death: “No 


312 


SOVEREIGNTY IN THE UNITED STATES. 


authority can, on any pretence whatsoever, he exercised over the citizens of 
this state, but such as is, or shall be, derived from, or granted by, the peo¬ 
ple of this state .” [Const. N. Y. Art. I. § 1.] 

Read Chancellor Livingston, supra, 93 ; Alexander Hamilton, Fed¬ 
eralist, 85; and II. Elliott’s Debates, 353 et seq. ; and John Jay, 
supra, 92. 

The sure conclusion of every line of honest and logical thought is, 
as John Jay expresses it, that the government receives “the part of 
the people’s business entrusted to them, not for themselves, but as 
the agents and overseers of the people,” — the true idea being that the 
individual sovereign states delegated all the powers granted, to them¬ 
selves, as associate sovereign states, — the latter necessarily adminis¬ 
tering them through an agency or joint commission of their subjects, 
chosen by themselves respectively. 

Sovereignty owns all the “ powers ” of government; it governs 
through mind and by will; it delegates its powers in trust, and for 
its own use, to its chosen subjects and agents. 

The powers it does not delegate, it keeps back; and it is a crime 
for agents and servants to take and use them. 


CHAPTER VI. 


ERRONEOUS VIEWS OF SOVEREIGNTY. 

A FTER careful reading of the constitution in the light of history, 
the surprise of reading Story, and the paraphrases of him by 
Lincoln in 1861, by the Philadelphia convention in 1866, and by 
the federal supreme court more recently, is only equalled by the 
pain of seeing their general promulgation, vast following, and ruinous 
consequences. The confiding masses readily yield assent to misstate¬ 
ments and untruths, if leading men — great or small — constantly 
string them on a plausible thread of sophistry; while those whose duty 
it is to find and proclaim the truth, seem to stand in criminal silence 
or abject discouragement, forgetting the eternally salutary rule of 
telling the truth, doing justice, and leaving results to God. 

It seems absurd to meet by analysis and argument many of the 
dogmas of consolidation, that really must be examined, and tested by 
truth, under the very eye of the people, so that misstatements and 
sophistries, as well as their advocates, can be put under the ban of 
public reprobation. 

The Teaching that the States are mere Counties runs about 
as follows : “We, the people,” as a nation made the constitution. It 
is “ the supreme law of the land,” and it “ reserves to the states, or 
to the people,” all “powers not delegated to the united states.” 
Hence, the states have no status or rights, except what the nation 
has “reserved to them,” in its supreme law. Judge Story puts it 
as follows : “ There is a limited supreme sovereignty conferred upon 
the national government by the constitution of the united states.” 
[ Bills of Exchange, § 23.] The Philadelphia convention’s claim, that 
“ the government ” holds the states under allegiance , and the federal 
supreme court’s declaration that the said government “ is supreme and 
above the states ,” have been heretofore stated. The complement of all 
this treason is, that the right of deciding finally on all disputed juris¬ 
dictions belongs to the said government — this, of course, sealing the 
subjection of state authority and existence. [Supra, 160.] 


314 


SOVEREIGNTY IN THE UNITED STATES. 


Amazing as this may seem, there are thousands of so-called repub¬ 
licans, and so-called democrats, who actually have minds — shave 
beards — talk politics, and assume to lead, who stand upon the false 
doctrine, and say they are “ state-rights men ” ! 

Defences Changed to Means of Attack. — The above is really 
the most pernicious expounding we have, because it bears a semblance 
to fair exposition, and deludes the people into the idea that their 
beloved commonwealths are impregnably fortified by the constitution, 
while in reality that constitution, with its forces, is perverted into 
an engine of destruction, that will grind them to powder. To use 
the figure of Fisher Ames, the states are on “ the naked beach; and 
the union is the dyke to fence out the flood.” As long as it is ad¬ 
mitted that the states are the makers, owners, and controllers of the 
dyke, it is all right; but the prevailing idea is, that a superior power, 
with their safety in charge, dyked them in, and can, by construction , 
increase that dyke to the walls of an impregnable fortress, and can 
at will, and on the plea of necessity, turn its guns inward upon the 
states! Offence and defence are relative, and walls can be used for 
protection or restraint ! History is full of instances of citadels be¬ 
coming prisons to the owners, — useful machines proving to be traps, 
and “engineers hoist with their own petards.” At all events, the peo¬ 
ple, under this treason, are losing liberty ! 

“ The States are Sovereign, except,” etc. — Let us now pro¬ 
ceed to expose the flagrant error (or mistake) of the “expounders,” 
on this subject. Judge Story, in his Bills of Exchange, § 23, thus 
sets it forth: “ Each state is absolutely sovereign in its political 
organization and government and dominion, saving and excepting 
only so far as there is a limited supreme sovereignty conferred upon 
the national government, by the constitution of the united states.” 

Webster, in a letter to Baring Brothers & Co., October 16, 1839, 
said : “ Every state is an independent sovereign political community, 
except in so far as certain powers, which it might otherwise have 
exercised, have been conferred on a general government, established 
under a written constitution.” 

Hon. A. H. Stephens, in his War between the States, vol. i, p. 403, 
claims that Mr. Webster in the above, and in his argument in the 
“Bank of Augusta vs. Earle” (13 Peters, 599), fully admits that “the 
states are sovereign, except in so far as they have delegated specific 
sovereign powers.” It is difficult to see how this so-called admission 
helps Mr. Stephens’s argument, or proves a change in Mr. Webster’s 
views between 1833 and 1839. I fancy Mr. Webster might cogently, if 
not conclusively, reply as follows : “ You state my admission correctly. 
I made it in 1833 as well as 1839; and on the former occasion I 


ERRONEOUS VIEWS OF SOVEREIGNTY. 


315 


added, as on the latter I implied, that so far as those ‘ specific sover¬ 
eign powers ’ go, ‘ so far state sovereignty is effectually controlled.’ 
By claiming my admission of yOur statement, you admit mine. We 
agree, then, that as to the ‘ specific sovereign powers,’ the states are 
not sovereign, and that hence ‘ so far state sovereignty is effectually 
controlled.’ ” Should not Mr. Stephens, to escape, change his base, 
and say he did not mean sovereign powers 1 In truth, there are no 
such in the constitution — all being subordinate. However, all the 
writers of the Massachusetts school state the doctrine exactly as Mr. 
Stephens (inconsistently with his theory) seems to admit the same. 

I will present here two more expressions, because of their represent¬ 
ative character, and because they show that, as to constitutional 
views, there is little or no difference between the great parties of the 
day. George H. Pendleton said in a speech at Bangor, Maine, in 
1868: “ The men of 1787, . . . committed to the federal government 
inter-state and international affairs. All the rest they reserved to the 
states themselves. Within this narrow sphere they made the federal 
government supreme. All beyond remained to the unimpaired sove¬ 
reignty of the several states.” Further along, he calls our system 
“ a union of states , . . . sovereign , except in so far as they have dele¬ 
gated the exercise of some powers,” etc. Is there any difference 
between Mr. Pendleton’s statement and that of Mr. Stephens ? And 
the New York World agrees with its neighbors, the Tribune and the 
Times, on this point. Its expression is that the states are “ not 
sovereign, except as to their reserved rights.” By “ reserved rights ” it 
means such as are reserved to the states in the general constitution. 

Do not these expounders all stand upon Lincoln’s dogma, that the 
states of the union are but counties or municipal divisions of a great 
nation, with no rights at all except what the said constitution reserves 
to them; or Webster’s equivalent, that “ the nation ” “ ordained ” 
“the constitution,” “and therein they established a distribution of 
powers between this, their general government, and their several state 
governments” 1 ? Obviously, the only respect in which Webster and 
others differ from Lincoln, is that this “ expounder ” blurts it out that 
states are counties, while those merely imply — but as certainly mean 
— the same. Indeed, one of the ablest writers of this school said, in 
the North British Review for January, 1870, that “ the history of state 
sovereignty ends, and the history of state rights begins, at the federal 
convention of 1787,” — meaning by state rights those provided for 
and guarantied in the federal constitution. 1 Practically “the school” 

1 This writer like many — yes, thousands, argued ably on a subject he did not under¬ 
stand— not knowing the facts. Another of his expressions is the following: “The 
united states constitution started into life, with a full recognition of state sovereignty in 


316 


SOVEREIGNTY IN THE UNITED STATES. 


seem to teach, or believe, that the states have no status or rights 
whatever, independently of the general constitution; and this is, log¬ 
ically, Webster’s view of 1833. It should seem inexpressibly absurd 
to say, that rights and powers “retained,” or “reserved,” [see 
Amendments IX. and X.] were not kept out of the constitution, and in 
the pre-existent states, that ratified and thereby ordained and estab¬ 
lished it. “ Well-known words must be taken in their well-known 
sense,” says Webster. 

As this weak and fallacious dogma is the corner-stone — nay, the 
whole foundation, of the expounding “ school,” the reader may wish to 
see it in its most respectable dresses. Let him look, then, at Brown- 
son’s American Republic, Draper’s Civil War, Cooley’s Constitutional 
Limitations, Greeley’s American Conflict, Jameson’s Constitutional 
Convention, Lunt’s Origin of the War, Parker’s Harvard Lectures of 
1865-6, etc. 

Delegating is Irrevocably Granting. — With amusing naivete , Mr. 
George T. Curtis, while declining, in a recent controversy with Mr. 
A. H. Stephens, to defend Mr. Webster’s views on “political sove¬ 
reignty,” sets them forth as follows: “ When the states ratified the 
constitution, they parted with a part of their sovereignty, and yet 
remained states. . . . The sovereign powers of a people are divisible, 
so that a portion can be granted irrevocably, and a part retained.” 
[See his letter in N. Y. World, August 23, 1869. See also the 
World of June 3, 1868.] The reader will please notice here that the 
“ sovereign, powers ” to be parted with, or reserved, are treated of as 
identical with “ sovereignty.” 

The above expression may be taken as the views of Dane, Story, 
Webster, Curtis, G. H. Pendleton, and, in short, of the whole Massa¬ 
chusetts school. They admit, strange to say, that the states, as 
sovereign political communities, ratified and established the constitu¬ 
tion ; but they untruly assert (and in doing so disregard history and 
reason) that the said states thereby excepted out of their sovereignty 
a national sovereignty which effectually controls them. The very 
constitution itself, with its “ plain tale, puts them down ” ! What 
they incorrectly and sophistically call exceptions out of sovereignty, 
are expressly characterized, by the constitution itself, as delegated 

the senate, and of national sovereignty in the house of representatives; and the problem, 
how to harmonize the two, was the legacy of the federal convention to the American 
people.” 

Such legacy was never thought of, much less left. The commonwealths of people 
were to govern themselves, jointly and severally. Having the right to do so from God, 
they had sovereignty in them. “It never leaves them.” [Wilson.] The senators and 
representatives of a state were the delegation of that state. All those delegations made 
the congress of the states, which are the sovereignty as to general affairs — a joint sove¬ 
reignty of commonwealths. 


ERRONEOUS VIEWS OF SOVEREIGNTY. 


317 


powers. And it contains no powers but delegated ones; these, as the 
phrase solely means, being confided to agents or representatives, for 
the use and behoof of the delegators or sovereigns. 

Arguing from False Words. — As the constitution contains, and 
contemplates, no other “ powers ” than those “ delegated,” these must 
necessarily be used by agents or trustees, i. e. persons who act for the 
supreme authority that the said powers belong to. So when the 
Danes, Storys, Websters, Jacksons, Curtises, Parkers, Brownsons, 
Drapers, Pendletons, Lincolns, Jamesons, Greeleys, Johnsons, and 
others, talk and write of “ceding,” “transferring,” “parting with,” 
“ relinquishing,” “ surrendering ” — all in the sense of alienating — 
sovereignty, and say it is done “ irrevocably,” while they suppress the 
real constitutional language, which bears a totally different meaning, 
they only escape the imputation of ignorance by incurring a worse 
one; and those of them officially sworn to support and preserve the 
constitution must, if they escape the former alternative, meet the 
additional charge of perjury. 

It is certain that neither the constitution nor the sacred teachings 
of the fathers contain any warrant for such a doctrine as the states 
committing suicide, or as their contemplating any other sovereignty 
to amend the constitution than that which established it, namely, 
their own. Hence the immortal Washington wrote, “by unanimous 
order of the convention,” that making the constitution was the “ dele¬ 
gating ” of an “ extensive trust ” — this agreeing strictly with the in¬ 
strument itself, which expressly and exclusively provides for “ powers 
delegated,” and for none whatever that are “ granted irrevocably.” 
And hundreds of pages from the fathers could be here quoted, 
to show the falsity of the idea that sovereignty was transferred-at 
all — let alone “ irrevocably,” — but not a line in its favor. Nay, 
more, I will venture to say, that as no man can believe an obvious 
untruth, the great mind of Webster never believed, and Mr. Curtis 
does not now believe, that the sovereignty of the people is “ divisible, 
so that a portion can be granted irrevocably, and a part be retained.” 

Is not this particular expounding now degraded to the rank of a 
misstatement, and made to appear so absurd that any mere soph¬ 
ist, upon being convicted of it, would rather say, “ I aimed to cheat 
with it,” than “ I believed it ” ? 

The Fathers never held such dogmas, though they sometimes 
used the word sovereignty in the sense of government, rather than 
the right of government. But they nowhere say or hint that the 
states, as political bodies, are “ sovereign, except so far ” as they are 
not sovereign, — this being precisely the idea of all these modern 
expounders. In those days of political experiment, the fathers were 


318 


SOVEREIGNTY IN THE UNITED STATES. 


to be excused for misnomers, for the subject was new to them, and all 
their political ideas and language came from European sources, where 
sovereignty is held of original right, and wielded by the visible govern¬ 
ment, this being monarchical; while in the united states, the govern¬ 
ment has no original rights and powers whatever, and the sovereignty 
dwells down in the people always, and is only manifested through 
“ substitutes and agents.” Moreover the powers of making war, peace, 
treaties, coinage, and of taxing, etc., were commonly called “ sove¬ 
reign powers; ” and the fathers, to be intelligible, spoke to the people 
in common parlance, not dreaming that their language would make 
confusion of ideas, and furnish pretexts for sophistical exposition in 
the future. At all events, they nowhere hint the idea of Webster, 
that so far as the delegated powers in the constitution go, “ so far state 
sovereignty is effectually controlled.” 

Politicians, like Sheep, follow a Bell. — It is doubtful if any man 
ever lived who was capacitated to entertain the idea of a sovereignty del¬ 
egating a sovereignty, which could rightfully coerce the sovereignty that 
did the delegating — at least until office-seeking came to be a profession, 
and facts, falsehoods, sound arguments, sophistries, and frauds, equal 
cards in all political games. Politicians adopt and follow the doctrines 
of leaders and conventions, as thoughtlessly as sheep follow bell-weth¬ 
ers. They all start from Story and Webster’s dogmas, as from postu¬ 
lates or premises. If they delve at all in the mine of constitutional 
history, they pass by a thousand proofs of the falsehood of those dog¬ 
mas, to cull a few seeming evidences of their correctness. They dare 
not bring out the truth, for although it may “ run and be glorified,” 
it runs slowly, and they cannot go into the next generation to run 
for office on it. Would Seymour have received a vote in the conven¬ 
tion of 1868, if he had expressed the views of Washington, Franklin, 
Hamilton, and Madison'l Would George H. Pendleton be thought 
of for the presidency, if his was the faith of the fathers (for instance, 
the ideas of Chancellor Pendleton in the Virginia ratifying conven¬ 
tion) instead of the Massachusetts school! The modern Pendleton 
thinks the powers delegated by the states can be used by the subjects 
of the states, to coerce these bodies into obedience to the said powers. 
And, mirabile dictu ! Hon. A. H. Stephens “ leaves his own, to stand 
on foreign ground,” and strays into the flock. Let us see. Of course 
he concedes that all the powers of the federal constitution are to be 
enforced. Then the “ specific sovereign powers” he speaks of, are to be 
enforced “ over the authority delegating ” them so long as they “ are un¬ 
resumed” Hence, Mr. Stephens’s own words assert a coercive powder 
in the federal pact over the states. The theory of his book, however, 
is, or seems to be, the one unanimously held by the fathers, to wit: 


ERRONEOUS VIEWS OF SOVEREIGNTY. 


319 


that the states were to associate, and conjointly act, in general govern¬ 
ment, with entire voluntariness, and that this inconsistent and mis¬ 
chievous war-power of coercing states was to be carefully excluded. 

Hon. A. H. Stephens and others on Sovereignty. — Mr. Stephens, 
in his “War between the States,” expresses some views utterly incon¬ 
sistent with his general theory. I purpose now to notice these some¬ 
what, together with kindred views of other most eminent conservative 
politicians. In Vol. I., pp. 488-9, he says that “sovereignty is the 
highest and greatest of all political powers ; that it is the source , as well 
as the embodiment , of all powers; ” that it is susceptible of partition 
and transfer; that “ if sovereignty is not parted with by the states, 
in express terms, ... it is still retained and reserved to the people of 
the several states, in that mass of residuary rights , which was expressly 
reserved in the constitution itself; ” and, finally, that it was “ not 
expressly reserved in the constitution at first,” but was “soon after” 
“ expressly reserved ” in the Tenth Amendment. 

This all means that sovereignty, which must be the peculiar and 
essential characteristic of a state, — the very one that causes it to 
differ from a county or a province, which consists of the right of com¬ 
mand over everything, and which was supposed to be above all rights 
and powers, and to have the absolute disposal of them, — is divisible, 
and subject to grant or reservation; and that, though it might have 
been parted with, it is actually reserved to the states in the Tenth 
Amendment of the federal constitution, — this being the sole source 
of, and their only title to, their sovereignty! Moreover, he calls 
these alleged fractions of sovereignty “specific sovereign powers.” 
All this resembles the doctrines of Dane, Story, Webster, Curtis, 
G. H. Pendleton, and the New York World, but not those of A. H. 
Stephens. 

The former could say to Mr. Stephens : “ As you assert, the sove¬ 
reignty of the states ‘ was not expressly reserved in the constitution at 
first,’ but was afterwards ‘ expressly resewed * in the Tenth Amendment. 
Did not the constitution thenceforward provide the practical means of 
preserving that sovereignty h Did not the guaranty of a republican 
form of government [Art. IV., § 4], and the amendment in question, 
aided by other clauses, empower and charge the government to see 
that the states are protected in their rights as reserved, including this 
right of sovereignty 1 As sovereignty is thus placed in and under the 
constitution, as you admit, it must consist with the ‘ specific sovereign 
powers,’ which you say are granted in the other parts of the instru¬ 
ment. Do you not, therefore, admit that Mr. Webster is right in his 
dictum, that, ‘ so far as the constitution goes, so far state sovereignty 
is effectually controlled ’ 1 ” 


320 


SOVEREIGNTY IN THE UNITED STATES. 


Does not Mr. Stephens, then, seem entangled in the meshes of his 
own logic, so that his only escape is to admit that the constitution does 
not involve state, or any other, sovereignty, hut that the pact, includ¬ 
ing the government it provides for, remains, as a created instrumen¬ 
tality, beneath, and subject to, the authority of the states which 
established it, as the terms of their association ? This, indeed, seems 
to be the general theory of his book. 

In order not to do Mr. Stephens injustice, I here quote him at con¬ 
siderable length, using some italics for my purpose : — 

“. . . One of the main objects in forming the compact, as before 
stated, and as clearly appears from the instrument itself, was to pre¬ 
serve and perpetuate separate state existence. The guaranty to this 
effect, from the very words used, implies their sovereignty. There can 
be no such thing as a perfect state without sovereignty. It certainly 
is not parted with by any express terms in that instrument. If it be 
surrendered thereby, it must be by implication only.” 

He shows that this cannot be, and proceeds: — 

“For sovereignty is the highest and greatest of all political powers. 
It is itself the source , as well as embodiment , of all political powers, 
both great and small. All proceed and emanate from it. All the 
great powers, specifically and expressly delegated in the constitution, 
such as the power to declare war and make peace, to raise and sup¬ 
port armies, to tax and lay excise duties, etc., are themselves but the 
incidents of sovereignty. If this great embodiment of all powers was 
parted with, why were any minor specifications made? Why any 
enumeration *1 Was not such specification or enumeration both useless 
aud absurd 1 

“ All the implications are the other way. The bare fact that all 
the powers parted with by the states were delegated only, as all admit, 
necessarily implies that the greater power delegating still continued to 
exist. 

“If, then, this ultimate, absolute sovereignty did reside with the 
several states separately, as without question it did, up to the forma¬ 
tion of the constitution; and if, in the constitution, sovereignty is not 
parted with by the states, in express terms; if, as,Mr. Webster said in 
1839, there is not a word about sovereignty in it, and if, further, this 
greatest of all political powers cannot justly be claimed as an incident 
to lesser ones, and thereby carried by implication, then, of course, was 
it not most clearly still retained and reserved to the people of the 
several states, in that mass of residuary rights, in the language of 
Mr. Jefferson, which was expressly reserved in the constitution itself ? 

“ It is true, it was not so expressly reserved in the constitution at 
first, because it was deemed, as the debates in the federal convention, 


ERRONEOUS VIEWS OF SOVEREIGNTY. 


321 


• as well as th6 state conventions, clearly show, wholly unnecessary; so 9 
general was the understanding that it could not go by inference or 
implication from anything in the constitution, or, in other words, that 
it could not be surrendered without express terms to that effect. The 
general understanding was the universally acknowledged principle in 
public law, that nothing is held good against sovereignty by implica¬ 
tion. But to quiet the apprehensions of Patrick Henry, Samuel 
Adams, and the conventions of a majority of the states, this reserva¬ 
tion of sovereignty was soon after put in the constitution, amongst 
other amendments, in plain and unequivocal language. . . . 

“This amendment, which was promptly agreed to by the states, 
unanimously declared that all powers not delegated were reserved to the 
states respectively. This of course includes , in the reservation , sove¬ 
reignty, which is the source of all powers , those delegated as well as 
those reserved. This reservation, Mr. Samuel Adams said, we have 
seen in the Massachusetts convention, was consonant with the like 
reservation in the first articles of confederation.” [I. Stephens’s War, 
etc., pp. 488-9.] 

Let us stop a moment to analyze and look closely at this state¬ 
ment : — 

1st. Of twenty different-sized “political powers,” for example, “the 
highest and greatest ” would be “ sovereignty.” What would the rest be? 

If sovereignty be taken away, where is the right to use the rest ? 

2d. But sovereignty is no power at all, for “ it is the source of all 
political powers,” — the spring, w T hich remains, while the rill flows out 
forever. Good figure and true ! Mr. Stephens should have stuck to 
it. Sovereignty is the source of all political powers. 

3d. He changes again, however, and says sovereignty is powers, i. e. 
“the embodiment of all powers !” 

4th. But he changes yet again, and says that even the highest and 
greatest of them (the same he has just asserted to be sovereignty, as 
the war-power, the tax-power, etc.), are the mere “ incidents of sove¬ 
reignty ,” and, of course, not sovereignty itself. 

5th. He says that as “ all the powers parted with by the states 
were delegated ” by sovereignty, it “ implies that the greater power 
delegating still continued to exist.” 

6th. He finally says, citing Mr. Jefferson, that sovereignty was in 
“ a mass of residuary rights, expressly reserved in the [original] con¬ 
stitution ; ” but that, not being itself expressly reserved , it was, several 
years afterwards, expressly reserved in the Tenth Amendment, which, 
we find, simply declares that all powers not delegated are reserved. 

The plain truth is, that neither the constitution, nor the tenth or 
any other amendment, has aught to do with sovereignty, for this entity 

21 


322 


SOVEREIGNTY IN THE UNITED STATES. 


is not subject to either delegation or reservation, as has been shown. 
It dwells permanently in bodies-politic, acting through their organs, 
in delegating or reserving powers, all that are delegated being put by 
sovereignty in, and all not delegated being kept by sovereignty out of, 
the constitution. 

Sovereign American Citizens. — Our politicians affect fanciful, 
attractive, and startling ideas, especially such as flatter the people. 
Every citizen is a sovereign. Often the idea comes up in a form and 
place to blush for. For instance, Anson Burlingame, of Massachusetts, 
claimed in Europe, on the basis of personal sovereignty, the equality 
of an American citizen with European crowned heads. Governor 
William Allen, of Ohio, not only seems to think that we have just 
the number of sovereigns that we have voters, but that they desove- 
reignize themselves at every election. Witness the following, from 
his speech at Columbus, August 20, 1873 : When you elect a repre¬ 
sentative to congress, “ you divest yourselves of your sovereign power, 
and put it all in the hands of one man.” “At six o’clock in the 
morning, these ten thousand men are the sovereign people.” “ At six 
o’clock in the evening,” they have completely “ divested themselves ” of 
sovereignty , and “ concentrated this tremendous power in the hands of 
one man.” In other words, sovereignty does not dwell fixedly in the 
people as organized, i. e. in the mind and will of the state, but bobs 
up and down with the successive delegations and withdrawals of 
power, like the hammers of a piano, or the “ merry dancers ” of the 
Aurora Borealis. 

Squatter Sovereignty. — Again, General Cass and Judge Douglass, 
two democratic candidates for the presidency, seemingly ignoring the 
pre-established sovereignty of the American united societies, the asso¬ 
ciated commonwealths, over the territory they jointly owned, held 
that these personal sovereigns could go and associate themselves for 
self-government on such part of the public domain as they pleased, 
and, ipso facto, become sovereign and exclusive. If nomadic, of course, 
their lines might rightfully fall in any and all pleasant places they 
might from time to time wander to and occupy. 

The fact that these astute politicians labelled their theory “ popular 
sovereignty,” which is precisely the theory of this book, did not make 
it respectable, or even worthy of refutation. [But see Ch. X. infrai] 

Only in organization have the people sovereignty, and they are 
organized and capacitated to act, in political affairs, only as common¬ 
wealths or states, as we have seen. As such, they have established a 
league “ between the states,” i. e. themselves, and at the same time, 
and in the same instrument, constituted a governmental agency to 
rule their subjects for them. Their law, whether the “ supreme ” funda- 


ERRONEOUS VIEWS OF SOVEREIGNTY. 


323 


mental one, or the state constitution, is the harness or machine in 
which work these agents, who are selected by the said sovereign 
people from among their subjects, and commissioned and sent and 
sworn to do certain written duties, and to abstain from all not written 
or implied. This is 'plain common sense. 

The attentive reader will now see and appreciate the error in the 
following ascription of sovereignty to persons, by a conservative and 
able professor of a great college, who seems to fall a little short of the 
true idea — viz. that our members of states (i. e. the “ men ” that 
“ constitute a state ”) have a dual capacity, and govern only in their 
collective one. They, as the state, rule, votes being mere instruments 
of the said state, ordained in her constitution, through which she 
determines, formulates, and executes her will. The professor says: 
“ The franchise is a prerogative act. It is the act of a sovereign. It 
is performed without any responsibility whatever, except to one’s own 
judgment and conscience. And furthermore, although we are fond of 
boasting that every citizen is a sovereign, let us not forget that every 
one is also a subject.” 

In conclusion of this chapter, to aid honest reflection, I will present 

Some Decisive Definitions. —As Daniel Webster, in his speech 
of 1833, says that “well-known words” should be taken in their 
“ well-known sense ” in expositions of the constitution, I will invite 
Noah to “come to judgment” and correct Daniel with the “well- 
known sense ” of the leading words herein used. The hundreds of 
dictionaries in the library of the British Museum all agree with the 
impartial and decisive judgment (for such it may be considered) of 
the great American lexicographer. I quote from a genuine edition. 

“ Sovereignty, n. Supreme power; supremacy; the possession 
of the highest power, or of uncontrollable power.” It is obvious that 
the word has but one meaning; and that it is a superlative and un- 
qualifiable word. This definition shows all the phrases quoted at the 
beginning of Chapter V. to be gross errors. 

“Will, n. 1. The power of choosing; the faculty or endowment of 
the soul, by which it is capable of choosing ; the faculty of selecting or 
preferring one of two or more objects. 2. The choice which is made; 
a determination or preference which results from the act or exercise 
of the power of choice ; a volition. 3. The choice or determination of 
one who has authority; a decree; a command; discretive pleasure.” 
[Webster’s Dictionary, ed. 1844.] 

In the edition of 1859, under “ Will” is the following, which suits 
my purpose : “ The will is directed or influenced by the judgment. 
The understanding or reason compares different objects which oper¬ 
ate as motives; the judgment determines which is preferable, and the 


324 


SOVEREIGNTY IN THE UNITED STATES. 


will decides which to pursue. In other words, we reason with respect 
to the value and importance of things : we then judge which is to be 
preferred; and we will to take the most valuable. These are but 
different operations of the mind, soul, or intellectual part of man.” 
[See also Locke, Understanding, B. II. c. 21.] 

The error of the writers herein criticised seems to result from their 
not always keeping it in'mind that “will ” and “power ” are totally 
different entities ; and that “ sovereignty ” is supremacy of will, while 
power or powers refer to the faculty or ability of doing, or the author¬ 
ity to do, what effectuates will. A paralytic may have will without 
power, and an idiot power without will. Hence we see that either of 
the said entities can exist without the other. Legislation is sovereign 
will in the shape of law, though it is ineffectual without executive 
power. 

“ Delegation, n. A sending away; the act of putting in commis¬ 
sion or investing with authority to act for another; the appointment 
of a delegate. 2. The person deputed to act for another or for 
others. Thus the representatives of Massachusetts in congress are 
called the delegation , or ivhole delegation .” 

“Delegate, v. t. 1. To send away; appropriately, to send on an 
embassy; to send with power to transact business as a representative. 

. . . 2. To entrust; to commit; to deliver to another’s care and 

exercise; as, to delegate authority or power to an envoy, representa¬ 
tive or judge.” 

Power. Any and every power in the constitution, being granted 
or vested by delegation, is necessarily “an authority which enables 
one person [or a set of persons] to do an act for another.” [See note, 
p. 302, supra.~\ 

Here then is the plain teaching—“the well-known sense” — of 
these important words : 1. The sovereign mind (whether residing 

in a monarch, an aristocracy, or a state), in governing wills. 2. Pow¬ 
ers are, by it, delegated to agencies to effectuate its will. 3. All 
the powers of the constitution of the united states are delegated , and 
are so many specific authorizations to “ substitutes and agents ” to 
carry out sovereign will. Such will must ever reside in the people as 
states, for only thus did they ever organize themselves. Republican 
sovereignty cannot be in constitutions or governments, not only be¬ 
cause it must be in the people, who have ever the right of govern¬ 
ment, but because the so-called governments are, by the people , cre¬ 
ated and endowed with “ delegated ” authority, and are administered 
by the people’s representatives , who must be members and citizens, and. 
necessarily, subjects of states. 


CHAPTER VII. 


THE UNITED STATES ARE SOVEREIGNS YET. 

I N every step of progress hitherto, we have seen that “ the united 
spates,” and “the people of the united states,” are identical, the 
people being named in the instrument constituting the federal gov¬ 
ernment, and delegating to it the powers it is to exercise, as New 
Hampshire, Massachusetts, New York, Pennsylvania, Virginia, and 
others; being provided for throughout the said instrument as such 
states; and being recognized, in the seventh and last article, solely 
in the character of states, and as exclusively ratifying, and thereby 
ordaining and establishing, the constitution, and giving the only life 
and authority thereto. 

And we have seen that, in all their contemporaneous explanations, 
the leading fathers asserted, nem. con., that the bodies of people 
called states were “the parties to the compact,” [Hamilton, Fed. 85], 
and were in the status and character of sovereigns [Part I. Ch. VII.]. 
No change in the said states was ever intended or thought of; for 
they were considered to be, as Hamilton said, the “ essential compo¬ 
nent parts of the system,” the destruction of which would be “ politi¬ 
cal suicide.” These are his own remarkable expressions. 

We have seen that each body had a mind; that government is 
essentially mental and functional action; that no nation, or national 
society, could supplant the states, because forming government for pre¬ 
formed society, and not forming society itself, was the subject of 
action in 1787; that the sovereign wills that ordained the constitu¬ 
tion had to subsist through the making, and afterwards, to secure 
the obedience of their subjects thereto; and, finally, that their con¬ 
tinuance in sovereign individuality, throughout the duration of the 
pact, is necessitated by article V., in which it was agreed by “the 
parties to the compact ” that “ three fourths of the several states ” 
shall, by “ ratification ” of amendments proposed in proper form, 
amend the constitution. 

The People, as States, have always amended. — And accord¬ 
ingly, throughout their federal history, and in pursuance of their 


326 


SOVEREIGNTY IN THE UNITED STATES. 


federal agreement, the states have amended their constitution^ when 
they thought “ the common defence ” and “ general welfare ” were 
not well enough “ provided for” and “promoted.” This power of 
amendment or change is the power of abolition or repeal; and it 
shows the states, i. e. the collective people, to be above their federal 
“ supreme law.” 

A cursory view of the early, as well as the latter, amendments will 
corroborate fully the view here taken, and settle forever, in any 
thoughtful reader’s mind, the supremacy of the states, whether united 
or single, over the tripartite agency constituted by them to do their 
federal business. 

The First Twelve Amendments. — Before 1865, tw T elve amend¬ 
ments had been adopted by the states , and added to their c&nstitu- 
tion, according to the mode agreed on in article V., just cited. This 
power of amendment, alone, shows that the states are supreme above 
the constitution and the federal government; and that they are not 
in allegiance, but only bound by self-imposed obligations. 

Following the lead of Massachusetts, all the principal states, when 
they ratified, insisted upon amendments; the main one referring to 
the reservation of all powers not delegated. 

Congress, acting as the agent of the associated states, took early 
action, and proposed to each state, for her adoption or rejection, the 
first ten of the amendments. Here is the record; the italics are 
mine : — 

“ Congress of the United States , begun and held at the city of New 
York, March 4th, 1789. 

“ The conventions of a number of the states, having, at the time of 
their adopting the constitution, expressed a desire, in order to pre¬ 
vent misconstruction, or abuse of its powers, that further declaratory 
and restrictive clauses should be added; and, as extending the ground 
of public confidence in the government will best ensure the beneficent 
ends of its institution, — 

“Resolved, . . . that the following articles be proposed to the 
legislatures of the several states, as amendments to the constitution of 
the united states ; all or any of which articles, w T lien ratified by three 
fourths of the said legislatures, to be valid to all intents and purposes, 
as part of the said constitution.” 

Adoption by Separate States. — The said ten amendments were 
ratified as follows by the states, viz. : By New Jersey, Nov. 20, 
1789 ; by Maryland, Dec. 17, 1789 ; by North Carolina, Dec. 22, 

1789 ; by South Carolina, Jan. 19, 1790 ; by New Hampshire, Jan. 
25, 1790 ; by Delaware, Jan. 28, 1790 ; by Pennsylvania, March 10, 

1790 ; by New York, March 10, 1790 ; by Rhode Island, June 15, 


THE UNITED STATES ARE SOVEREIGNS YET. 


327 


1790 ; by Vermont, Nov. 3, 1791 ; by Virginia, Dec. 15, 1791. The 
following is the introduction of the said ten articles, as promulgated 
by congress : “ Articles in addition to, and amendment of the con¬ 
stitution of the United States of America, proposed by congress, and 
ratified by the legislatures of the several states, pursuant to the fifth 
article of the original constitution.” 

In 1798 and 1804, the eleventh and twelfth amendments w T ere 
established ; the former being the last of several most studied and 
careful endeavors to prevent the states from being subordinated and 
subject to coercion. [Amendments IX., X., and XI.] 

The Later Amendments. — About seventy years after the first 
ten were adopted, viz. after the war “ between the states,” “ the peo¬ 
ple of the united states ” again amended, adding the XIII., XIV., 
and XV.; and doing it in the mode prescribed by their aforesaid 
article V. 1 

1 Amendment of 1865. 

Article XIII., section 1.—Neither slavery nor involuntary servitude, except as a 
punishment for crime, whereof the party shall have been duly convicted, shall exist 
within the united states, or any place subject to their jurisdiction. 

Section 2. — Congress shall have power to enforce this article, by appropriate legis¬ 
lation. 

Amendment of 1868. 

Article XIV., section 1. — All persons born or naturalized in the united states, and 
subject to the jurisdiction thereof, are citizens of the united states, and of the state 
wherein they reside. No state shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the united states; nor shall any state deprive any 
person of life, liberty, or property, without due process of law ; nor deny to any person 
within its jurisdiction the equal protection of its laws. 

Section 2.—Provides for apportionment of representatives, and for a reduction of 
them in proportion to the numerical reduction of voters. 

Section 3. — Disqualifies for federal office those who have taken federal oath, and * 
afterwards aided rebellion. But congress, by two-thirds vote, may remove disa¬ 
bility. 

Section 4. — Provides that the validity of the war debt shall not be questioned. But 
neither the united states, nor any state, shall assume the rebel debt, or pay for the loss of 
slaves. 

Section 5. — The congress shall have power to enforce, by appropriate legislation, the 
provisions of this article. 

Amendment of 1870. 

Article XV., section 1. —The rights of citizens pf the united states to vote shall not 
be denied or abridged by the united states, or by any state, on account of race, color, or 
previous condition of servitude. 

Section 2. — The congress shall have power to enforce this article by appropriate 
legislation. 

Though the stating of facts, and not commentary, is here my object, I must say, e?i 
passant , that these amendments simply extend civil jurisdiction, and are to be enforced 
by the usual civil, and not by military, coercion; the latter being usable in the state, 
against “domestic violence,” only on call of the legislature thereof, or, when it “can¬ 
not be convened,” “of the executive.” Outside of this narrow and to-be-strictly-con¬ 
strued basis, even a Washington would have been perjured, if he had sent coercing 
federal soldiers to Pennsylvania, whether he acted before or after the amendment. 


328 


SOVEREIGNTY IN THE UNITED STATES. 


So that we find that the states named in the pact, and those they 
have associated with them, have ratified and ordained the constitu¬ 
tion, and all the amendments thereof, from the beginning to the 
present day; and that, in so doing, they have acted functionally in 
self-government, with their respective minds and wills. In other 
words, the constitution, the amendments thereof, and all the authori¬ 
ties thereunder, are the offspring of the wills of the states. 

The conquerors could have dictated amendments, and even provin¬ 
cialized or dissolved states ; but they chose to accept the submission of 
the seceders, and receive them into the same old association of equal 
commonwealths, where each has the solemn, sacred, and sworn guar¬ 
anty of all, that she shall have “ a republican [and not a provirfcial 
or municipal] form of government ”; or, in other words, that she 
shall be a republican commonwealth, or self-governing people in all 
respects. 

We see, then, that the people pre-existed as states; they were rec¬ 
ognized and provided for in the pact as states; they ratified and or¬ 
dained as states; they have always amended as states; and they 
now exist as states, the self-same political entities that convened in 
1787 to plan the constitution, and that subsequently ratified and 
ordained the same by their respective conventions, according to article 
VII. 

When and how did a State lose Sovereignty ? — Of course Mr. 
George Ticknor Curtis, the most respectable of the “ school ” under 
review, and the representative of Story and Webster, can tell when 
the states ceased to be such, and became provinces, departments, or 
counties of a nation. 

He has a chance now to settle the great American question for¬ 
ever. 

He admits fully that the states were respectively sovereign and 
absolute, before the present federal constitution was formed. Let us 
substantiate this admission at'the outset. In quoting from him the 
italics ate mainly mine. 

“ When the revolution was fairly accomplished,” said he, the “ state 
[of Rhode Island] assumed- its position of absolute sovereignty .” 
[II. Hist. Const. 599.] 

Again — “ The meeting of the states [to form a constitution] was 
purely voluntary : they met as equals, and they were sovereign politi¬ 
cal communities, whom no power could rightfully coerce into a change 
of their condition ; and with whom such a change must be the result 
of their own free and intelligent choice.” [Ibid.] 

“ The source of fundamental law is found in the sovereign author¬ 
ity of the people of a distinct state, to order the political conditions 


THE UNITED STATES ARE SOVEREIGNS YET. 


329 


of society. It cannot be doubted but this is the very highest of all 
human authority.” 1 [His letter to N. Y. World, 1869.] 

“ The relations of the individual to the political society of which he 
is a member, . . . came into existence as soon as a sovereign Ameri¬ 
can state was formed out of a revolted British colony.” [Ibid.] 

Enough : these strokes of his potent pen quash forever his magnum 
opus — “ the History of the Constitution.” They exactly contradict 
that book, and fully sustain this. His admissions derive additional 
force, not only from his ability and opportunity for knowledge, but 
from his being the disciple of Story and Webster; from his represent¬ 
ing the “school” as their historiographer; and, finally, from his 
most conspicuous wish to discover, under the present federal polity, 
some evidence of the revolutionizing of the republics into one grand 
state — some sign of sovereignty out of the states, and in a nation 
comprising them. And his fatal admissions fully accord with the 
treaty declaration of the first federal instrument — “ each state re¬ 
tains its sovereignty ” ; with each state’s own claim of equal sove¬ 
reignty from the beginning to the present; with the acknowledgment 
of George III., made at the instance of the states’ commissioners, of 
the sovereignty of each by name ; and with the unquestionable inde¬ 
pendence, sovereignty, and freedom of will, with which the states 
ordained the constitution, and acted under it thereafter. 

A few words more as to Mr. Curtis’s admissions will be aidful. To 
cap the climax of self-stultification, as it were, he quotes, with high 
approval, the language of Judge Wilson in the ratifying convention of 
Pennsylvania, that “ it has been incontrovertible since the revolution, 
that the supreme , absolute , and uncontrollable power is in the people, 
before they make a constitution, and remains in them after it is made.” 
Furthermore, he states it as the “ American doctrine,” “that all su¬ 
preme poiver resides originally in the people ; and that all governments 
are constituted by them to be the depositaries and agents of that power ” 
— so far, of course, as the people choose to impart it. “ And,” contin¬ 
ues he, “ the people can withdraw at their pleasure ” the power “ de¬ 
posited with a state government,” and “ vest it in another class of 
agents [the federal ones], leaving the authority of the former undi¬ 
minished, except as to the particular objects of the powers with¬ 
drawn.” 

Now, let us come down to, and consider, the single point of a 

1 Mr. C. repeats that “we can go to nothing that is higher [than state authority], and 
at the same time human.” But he proceeds then to develop the idea of a second so¬ 
ciety being formed, supplanting, or rather absorbing, the first; and of a government 
dominating the states that created it; but he only succeeds in making his fallacy more 
and more conspicuous as he proceeds. 


330 


SOVEREIGNTY IN THE UNITED STATES. 


state’s losing, being divested of, or alienating sovereignty; and, for 
use in illustration, let us make a row of symbolical figures, to repre¬ 
sent a given state (say Rhode Island) at the different dates indicated, 
— each figure with a star in it, to represent sovereign will, as fol¬ 
lows : — 



1*1 l*J |*| 



* 


1776 1786 1796 1806 1816 1826 1836 1846 1856 1866 1876 


Of course, so stupendous a change as desovereignizing a state, and 
making a subjugated province or county of it, must be marked by 
more or less of easily citable facts of history, or documents; and 
Mr. Curtis, whose researches have been most extensive, should 
be asked for, and required to point out, the evidences of such 
change, so that we can admit or controvert such momentous aver¬ 
ment. Let us know the precise time when the name, geography, 
people, organism, or inherent political authority of any given common¬ 
wealth underwent that essential and radical change of state to prov¬ 
ince or county, and from sovereignty to subordination, which he 
teaches in his works. 

At what epoch should the star be left out of the above illustration ? 
Let us have the facts proving the change, so that they can be ex¬ 
amined. 

Admissions of Everett, J. Q. Adams, and Webster. — These 
other most distinguished sons of Massachusetts, who at times per¬ 
verted her faith and endangered her statehood, also prove by forceful 
admissions alike their amusing and confusing inconsistency, and the 
doctrine of this book. 

Edward Everett wrote to Jefferson, in 1826, that “the constitu¬ 
tion of the united states is a compact of independent nations ” — 
this, being also the view of Jefferson. [J.’s Works, Vol. VII.] To 
Washington Hunt he wrote, on May 29, 1860 : Our union of co¬ 
equal sovereign states requires, as its basis, the harmony of its mem¬ 
bers, and their voluntary co-operation in its organic functions.” 

John Quincy Adams said, in his discourse on the constitution, 
delivered in 1839: “To the people alone is there reserved as well 
the dissolving as the constituent powers, . . . and the people of 
each state . . . have the right to secede from the confederated 
union.” 

Daniel Webster, as heretofore shown (p. 212), called our union 
“ the American confederacy,” said that it was voluntary, and that 
“ the only parties to the constitution contemplated by it originally 











THE UNITED STATES ARE SOVEREIGNS YET. 331 


were the thirteen confederated states,” and declared that the indi¬ 
vidual states had “the exclusive possession of sovereignty.” And, in 
Annapolis in 1852, just before his death, he said, as to the states, that 
“ it never entered into their conceptions that they were to consolidate 
themselves into one government, that they were to cease to be Mary¬ 
land and Virginia, Massachusetts and Carolina. . . . The objects of 
the common defence and the general welfare, and afterwards the 
objects connected with commerce and revenue, . . . were all they 
adopted as principles and objects of union and association, nothing 
beyond that. . . . Gentlemen, I hope , for one, never to see the original 
idea departed from.” 

William H. Seward, at Cleveland, in 1844, said: “This union 
must be a voluntary one, and not compulsory. A union upheld by 
force would be a despotism.” Twenty-one years thereafter, viz. Octo¬ 
ber 20, 1865, in a most elaborate address on the then condition of 
things, and speaking in direct reference to possible claims of change 
in our system by the war or otherwise, he said : “ This absolute exist¬ 
ence of the states, which constitute the republic, is the most palpable 
of all the facts which the American statesman has to deal with. . . . 
In a practical sense, at least, the states were before the American 
union was. . . . Our federal republic exists, and henceforth and for¬ 
ever must exist, through . . . the combination of these several free, 
self-existing, stubborn states. . . . They are living, growing, majestic 
trees, whose roots are widely spread and interlaced within the soil, 
and whose shade covers the earth.” 

And even the Philadelphia Convention of 1866 admitted that no 
change of the constitution of the government, or of the character and 
authority of the states, had been made by the war; as did the cen¬ 
tennial orator, William M. Evarts, in his address at Philadelphia, 
July 4, 1876. 

Sophists always stultify Themselves. — So it is with all the 

leading consolidation advocates. Truth’s wand, like Ithuriel’s spear, 
makes each in turn helpless and pitiable, — the paralysis being sent 
down his spinal marrow by his own hand and pen. 1 All sophists 
must, at times, impulsively tell truths, despite their habitudes of art 
and craft. Truth and honesty are natural, and they often “ out,” 
while deceit and fraud are asleep, or “off watch.” 

The above expressions of the sophists precisely accord with the his¬ 
tory and records of the country, and with the fathers, as cited in Part 
I., Ch. VII. 

1 “Him thus intent, Ithuriel with his spear 
Touched lightly, for no falsehood can endure 
Touch of celestial temper; but returns 
Of force to its own likeness.” 


332 


SOVEREIGNTY IN THE UNITED STATES. 


The Political Philosophers. — The two greatest of the age speak 
as follows: — 

Lord Brougham says: “ It is plainly impossible to consider the 
constitution ” as anything “ other than a treaty ” forming a “ federacy 
of states.” 

De Tocqueville says the union is a “ voluntary agreement of the 
states,” which have respectively not “ forfeited their nationality,” and 
become “one and the same people.” 

John Stuart Mill writes of it in the same way. 

Vattel and Montesquieu forecasted our polity as follows : — 

Said the former: “ Several sovereign and independent states may 
unite themselves together by a perpetual confederacy, without each 
in particular ceasing to be a perfect state. They will form together 
a federal republic.” “ The sovereignty of each member,” continues 
he, “ is preserved,” though th^re is “ constraint on the exercise of it, 
in virtue of voluntary engagements,” i. e. the members bind themselves 
to voluntary functions in the union. 

Said the latter, describing what he calls the “confederate republic,” 
or the “ republic of republics ” : This is “ a convention [i. e. a com¬ 
ing together], by which several small states agree to become members 
of a larger one, which they intend to form. It is an assemblage of 
societies that constitute a new one [which is his ‘ republic of repub¬ 
lics ’], capable of increasing by new associations. . . . The confederacy 
may be dissolved and the confederates preserve their sovereignty.” 
He further remarks that, “ as this government is composed of small 
republics, it enjoys the internal happiness of each,” while by “the 
association,” it has “ all the advantages of large monarchies.” 

Issues of Fact tendered. — Passing by the facts that the bodies 
of people were called states in 1776 and 1787, in the then meaning of 
the word, and in the same sense as Spain and France were, and that 
sovereignty was that which alone distinguished them from provinces 
or counties; passing by, too, the fact that these bodies were not cre¬ 
ated, or provided for, by any law or constitution, as are counties or 
other subdivisions of a state, but that each pre-existed as an organ¬ 
ized political being, absolutely without a superior on earth, and the 
peer of every other state, and hence sovereign ; passing by, finally, the 
fact that each was declared and guaranteed by all to be sovereign, and 
was acting as a sovereign, throughout the framing and ordaining of 
the constitution in 1787-90, let us respectfully, but defiantly, tender 
decisive issues, and throw down the gage. If the pros are truths, 
must not the cons be falsehoods 1 

1. The people of the united states politically exist, and are capable 
of political action, only as republican commonwealths called states. 


THE UNITED STATES ARE SOVEREIGNS YET. 


333 


2. Each state is a distinct and independent body of people, with 
its own name, inhabitants, geography, and political organism, and 
is as separate and complete in existence as a man, an island, or a 
star. 

3. Each of these commonwealths has a mind, which it exercises in 
all acts of government, and it gathers information, reasons, judges, 
and wills, as to defence and welfare, just as a man does. 

4. The action of this mind, in constituting and administering gov¬ 
ernment, is functional, just as the self-governing action of a man’s 
mind is. 

5. Hence, as separate minds cannot unite by welding themselves, 
but must associate and co-operate, the union of states called “ the 
united states ” is necessarily a federation or league of states. 

The denial of these propositions is untruth. The “moral persons” 
do yet exist intact, and their continued existence is essential to the 
continuance of American institutional liberty. 

" Free, Sovereign, and Independent.” — This phrase, so often 
used unqualifiedly in our history, as to the status of a commonwealth 
[ e . g. in the constitution of Massachusetts; first federal constitution; 
treaty of 1783; act of Virginia, ceding northwestern territory; ordi¬ 
nance of 1787 as to same ; several state constitutions], means that 
she is 11 free ” in mind, to think and determine as she pleases; “ sove¬ 
reign ” in will, and beyond all earthly control; and “ independent ” in 
organism and existence; so that, without coercion, any other union 
or association than a voluntary one is a moral and political impos¬ 
sibility. 

Nay, more, the word “state,” as we have seen, means, when ap¬ 
plied by the fathers and the constitution to New York or Delaware, 
precisely what it does when it refers to England or France. “ When 
the constitution uses well-known words,” says Webster, it uses them 
“ in their well-known sense.” [See Constitution, Art. III., § 2 ; Amend¬ 
ment XI.] 

The States not under Control of the Government. — They alone 
have inherent and original right of existence and authority. The 
institution called “the government” has no right of control over 
them, because it springs from their will, and has only the authority 
they delegate; besides that, it is personally composed of their sub¬ 
jects, and must use their own men and means to execute coercion 
upon them. 

As heretofore quoted (p. 37), Daniel Webster declared that, in 
North America, sovereignty is ever in the people, and never in the 
government. And George T. Curtis says: “ The American doctrine 
is, that all supreme power resides originally in the people, and that 


I 


334 


SOVEREIGNTY IN THE UNITED STATES. 


all governments are the depositaries and agents of that power.” [Hist. 
Constitution.] 

But “ Change ” by Usurpation threatens us. — I submit, in con¬ 
clusion of this chapter, that the “ change ” so persistently asserted by 
Story, Webster, and the federal supreme court, from a federation to 
another system, neither was nor could be made; but that, through 
perversion, fraud, and perjured usurpation, the factitious and fraudu¬ 
lent change is coming over us, that Burke, as heretofore quoted, 
speaks of—a “change from a state of procuration and delegation to a 
course of acting as from original power , the very way,” continues he, 
“ in which all the free magistracies of the world have been perverted 

FROM THEIR PURPOSES ” ! 


CHAPTEK VIII. 


THE STATES ACT AS SOVEREIGNS IN THE UNION. 

J UDGING from New York’s declarations and action, under our fed¬ 
eral polity, she may well be called, in a second sense, “ the em¬ 
pire state ”; for surely no power of earth did ever more imperially 
assert herself, or act with more absolute sovereignty, than she has 
done in the federal union. Indeed, her whole history and record, 
and all her action — as will be seen — consist with and support the 
doctrine of this book. 

I have already illustrated, in the case of Pennsylvania [see ch. I. of 
this Part], the transition from colonial or provincial dependence to 
Statehood ; and shown that it is precisely the acquisition of “freedom, 
sovereignty, and independence,” that distinguishes a state from a 
province or other dependency. 

New York’s Record on the Subject. — She had been an organ¬ 
ized society, governed with entire separateness from every other, for 
over one hundred years, when she established her first constitution, 
in the year 1777. She then held a convention for this purpose 
exclusively elected and empowered by herself. Asserting and acting 
with supreme authority, she then declared herself to be the sup- 
planter of the whole British sovereignty — king, lords, and commons. 
That constitution — after recounting the steps towards sundering the 
ties of New York to Britain — introduces the declaration of indepen¬ 
dence as part of her fundamental law. In that declaration, her dele¬ 
gates, and those of her sisters in congress assembled, declared that 
their thirteen constituents are of right “ free and independent states”; 
are absolved from all political connection with, and allegiance to, the 
British crown; and “ have full power,” as “ free and independent 
states, to levy war, conclude peace, contract alliances, establish com¬ 
merce, and do all other acts and things which independent states may 
of right do.” This could be predicated of each state only, because 
there could be no mind to do such things except in the “moral per¬ 
sons ” then existent, and by name designated. We must keep it in 
view, that all affirmations in the history and records of these matters 


336 


SOVEREIGNTY IN THE UNITED STATES. 


refers to certain entities — political bodies— “ moral persons,” that 
then included all the people and covered all the territory, leaving 
thereout no powers, people, or acres, to make a nation of; and that 
these bodies, which have existed through all our history, do exist now, 
as distinct as trees in a grove, islands in the sea, stars in a group, or 
men in a corporation. These ideas once held, we require proof of the 
end or change of such entities. The onus is on the “ school.” 

Here is the proper place to brand a certain falsehood, nowadays 
commonly taught, viz., that the understanding was, that the nascent 
states were to be “ sovereign, free, and independent ” only as united 
states, — each and all the states being subordinate to The United 
States, or the nation. If such understanding ever existed, it would 
have been done away with by the second article of the confederation 
of 1778, declaring that “each state retained its sovereignty.” But it 
is entirely false, as New York herself shows, in the following con¬ 
tinuation of the said instrument: — 

“And whereas, having taken this declaration [of independence] 
into their most serious consideration, [they] did, on the 9th day of 
July last past, unanimously resolve, that the reasons assigned by the 
continental congress for declaring the united colonies free and inde¬ 
pendent states , are cogent and conclusive, and that while we lament 
the cruel necessity, ... we approve the same, and will, at the risk 
of our lives and fortunes, join with the other colonies in supporting 
it. By virtue of wdiich several acts, declarations, and proceedings, 
mentioned and contained in the afore-recited resolves of the general 
congress of the united American states, and of the congresses or con¬ 
ventions of this state, all power whatever therein \i. e. in the state] 
hath reverted to the people thereof [z. e. of the state], and this con¬ 
vention hath by their suffrages and free choice been appointed, and, 
among other things, authorized to institute and establish such a gov¬ 
ernment as they shall deem best calculated to secure the rights and 
liberties of the good people of this state. . . . 

“ 1st. This convention, therefore, in the name and hy the authority 
of the good people of this state, doth ordain, determine, and declare : 
That no authority shall, on any pretence whatever,- be exercised over 
the people or members of this state, but such as shall be derived from 
or granted by them” 

“All powers whatever” “reverted to the people” of New York! 
and “no authority,” “on any pretence whatever,” was to “be exer¬ 
cised over the people or members of this state,” but their own! 1 

1 President Lincoln —misled by New York and Massachusetts expounders — said the 
union made New York a state, and that she had no status or rights whatever, except 
what the national constitution reserved to her. Professor Jameson of Chicago may 


THE STATES ACT AS SOVEREIGNS IN THE UNION. 337 


New York now Sovereign. — We shall now see that New York 
retains this very self-assertion in full force to-day, and holds herself 
to be the absolute sovereign, who gives the federal agency its sole ex¬ 
istence and authority on her domain, and uses it and its means as her 
instruments, and for her purposes ; and that the said government has 
no right to exist, no right to act, no jurisdiction or control over citizens, 
and no right to hold, administer, or use property — even for federal 
purposes — without the sovereign authority, the grant, and the per¬ 
mission of that state, and subject to her conditions and her defeasance. 

Through her deputized subjects in federal convention, she assisted 
in devising the federal compact. In her own home convention she 
carefully examined it, asking herself if it was to her interest, safety, 
and welfare to adopt it; and finally, after due deliberation, her judg¬ 
ment barely inclined her will to make it her “ supreme law,” and to 
command her “ members” (i. e. her citizens and subjects) to obey it. 
Barely, I say, for the majority in her convention was only three, after 
a long and excited contest. 

Her ordaining words were as follows : “ We, the delegates, . . . 
in the name and behalf of the people of the state of New York, do 
by these presents assent to and ratify the said constitution.” 

Hereby the only vitality and validity the said compact ever had, 
or could have, in the state of New York, was given. Thenceforward, 
her subjects were to obey the federal agency by her command; 
for standing then in her imperial law was the declaration, that “ no 
authority” but her own was to “be exercised over” her “people or 
members,” “ on any pretence whatever.” 

What say Jay, Hamilton and Livingston? — These greatest sons 
of New York were most influential in causing her to federalize her¬ 
self. They probably knew as much of the character of the proposed 
system, and the intent of New York, as any of her later “ expoun¬ 
ders ” and so-called “ historians.” 

Jay said “ a union of states ” was being formed, and that the fed¬ 
eral functionaries were “agents and overseers of the people.” 1 

have taught him —or vice versa. The said professor also teaches, that in making their 
constitutions, and governing themselves, the states perform for the nation, and under its 
authority, delegative functions: and it is more than intimated by some, and perhaps 
by himself, that they have done so from the beginning. It is a waste of time, however, 
even to notice such contentions. He and Professor Mansfield of Cincinnati more than 
intimate that states are unnecessary except in the capacity of counties. 

1 Contrast, now, these views of the first Chief Justice and his compatriots with those 
of the present Chief Justice, who dares to say of the same constitution, in the very capi¬ 
tal of his leagued sovereigns, that he and the other federal ephemera (his co-agents and 
co-servants) are supreme over the said sovereigns, i. e. over the states as states — in 
consonance with the treasonable declaration of the Philadelphia convention of 1866, 
that the government has absolute supremacy" over allegiant states. 

*22 



338 


SOVEREIGNTY IN THE UNITED STATES. 


Hamilton said the union was “ a confederacy,” the constitution a 
“ compact,” the states the “ parties to the compact,” and “ the people 
of this state [New York] the sovereigns of it.” And Chancellor 
Livingston said the constitution provides for “ a league of states,” 
thus forming a “ federal republic ” — the very idea of Montesquieu, 
heretofore referred to. For a more extended citation of Jay and 
others see supra, p. 92, et seq. 

No dissent is anywhere found. Her greatest men asserted her and 
her sisters to be “ a confederacy ” of sovereigns — a league of states — 
each the highest authority on earth. They considered the constitu¬ 
tion to be the breath of the said monarchs, and “the government” 
their creation, agent, and servitor. How could it be otherwise when 
these sovereigns created its existence, “ delegated ” to it all of its “ pow¬ 
ers,” and chose and commissioned their members and subjects to ad¬ 
minister it 1 In the nature of things, their union, as associated bodies 
or “ united states,” was impossible except by federation. The “ moral 
persons,” each with her will, must act, and must survive the act. 

She now Claims Sovereignty over People and Soil. — After de¬ 
claring her boundaries in her constitution, New York says : “ The 
sovereignty and jurisdiction of this state extend to all places within 
the boundaries thereof, as declared in the preceding title; but the 
extent of such jurisdiction over places that have been or may be ceded 
to the United States shall be qualified by the terms of such cession.” 
[See present constn. of N. Y.] 

She also declares it to be “ the duty of the governor and of all sub¬ 
ordinate officers of the state, to maintain and defend its sovereignty 
and jurisdiction.” [I. N. Y. Rev. Stat. chap, i., tit. 2. §§ 1, 2.] 

She also declares, in as autocratic a manner as Kaiser William 
could possibly do, — declaring to-day what she declared at first, — 
that “ no authority can, on any pretence whatever, be exercised over 
the citizens of this state, but such as is, or shall be, derived from, and 
granted by, the people of this state.” [Ibid. ch. iv. §1.] 

Mark the words, “ citizens of this state ”; and to show how com¬ 
pletely this harmonizes with the federal constitution, and agrees with 
the theory of this work, see articles III. § 2, IV, § 2, and amendment 
XI. of the federal pact; and article I. § 1 of her own constitution, 
ordained in 1846 — the latter reading as follows: “No member of 
this state shall be disfranchised, or deprived of any of the rights or 
privileges secured to any citizen thereof, unless by the law of the land 
or the judgment of his peers.” 

Note that she calls “the people” the “members of this state” 
(just as the federal pact calls “ the people ” the “ citizens of different 
states ”), assumes to be their sovereign, and to be obliged to protect 


THE STATES ACT AS SOVEREIGNS IN THE UNION. 339 


their liberty and rights. “ The people ” are New York, i. e. a com¬ 
monwealth so named, which is formed by social compact, wherein 
each member agrees to be governed by all. Precisely thus does 
Massachusetts set forth this republican social compact (see the pre¬ 
amble to her constitution); and, consistently, she calls her citizens 
“subjects of the commonwealth.” And even the federal supreme 
court recently declared (in the Cruikshank case, 1876), that “citi¬ 
zens are members of the political community to which they belong.” 
Hence, under the concurrent declarations of Queens New York and 
Massachusetts, to say nothing of the united sovereigns and their su¬ 
preme court, we may consider “ member,” “ citizen,” and “ subject ” 
as convertible terms; also, that the only allegiance of the citizen is 
due to the society of which he is an integral part; also, that the only 
tie of allegiance in “ the united states ” is the social compact, especi¬ 
ally as no king, prince or feudal lord can be found there. At all 
events, government in republics, being created, delegative, and vicari¬ 
ous, and being administered solely by citizens and subjects of the 
sovereigns, it cannot possibly be the object of allegiance or treason, as 
will be duly and more lucidly shown. Treason is a crime against the 
state or the states. 

Uncle Sam stands in New York only on her Grant. — Seeing 
the pronounced absolutism of New York, we cannot be surprised to 
find the federal agency under her queenly thumb. Indeed, she never 
seems to tire of reminding that agency, that it is the “ business ” of 
her and her sisters that is done, and that those who “ receive that 
business to manage ” do it (as Jay above says), “ not for themselves, 
but as the agents and overseers of the people.” 

Nay, more, she over and over again declares or implies — as we 
shall see — that the said limited agency, calling itself “ the govern¬ 
ment,” can have no foothold or jurisdiction on her soil, except with 
her permission, and on her conditions. Greek and Roman proprietors, 
if leagued for joint government, and protection of their estates and 
families, could not have had a more masterly and owner-like control 
over their owned administrators, than these associated moral persons 
called the states have over their administering and managing sub¬ 
jects. And it is preposterous to suppose that these agents, who are 
appointed by the state for her purposes, who have only her powers, 
and are her subjects, should, against her consent, and for some outside 
authority enter of right on her soil, occupy her strong positions, 
and gain all points of vantage, so as to be able to encompass her attack 
and destruction , instead of her “ defence and safety .” 

New York on the Lordship of the Soil. — She considers that all 
rights and powers spring from the commonwealth, and fall thereto 


340 


SOVEREIGNTY IN THE UNITED STATES. 


when they lapse. As to the soil, she says in Article I. § 2, of her 
present constitution : “ The people of this state, in their right of 
sovereignty, are deemed to possess the original and ultimate property 
in and to all lands within the jurisdiction of this state ; and all lands, 
the title to which shall fail from a defect of heirs, shall revert or es¬ 
cheat to the people.” 

Virginia in her constitution expresses it as follows: “ All es¬ 
cheats, penalties and forfeitures, heretofore going to the king, shall go 
to the commonwealth.” 

Judge Kent thus states the American and republican idea, in IY. 
Com. 424 : “ The state steps in place of the feudal lord, by virtue 
of its sovereignty, as the original and ultimate proprietor of all the 
lands within its jurisdiction.” 

So we see that New York now considers herself as having upon her 
soil displaced the former sovereignty, that of Britain. And, consist¬ 
ently, she declares that “ all grants of land and charters of incorpora¬ 
tion made by the king of Great Britain, or by his authority, after 
October 14, 1775, shall be null and void.” [Const. N. Y.] 

The Conditions Federal Foothold is Granted on. — It will now 
be seen that the foothold of the federal agency in New York is held 
under her grant, and solely on the conditions she imposes. Nay, 
more, the said agency accepts those conditions, in behalf of its 
principals, the united states. 

On this point, please note, in the first place, the clause of Art. I., 
§ 8, of the federal pact, providing that the congress shall legislate 
over such ten-mile-square district as shall be “ ceded by a particular 
state,” and accepted by congress, for the seat of the government \ and 
shall “exercise like authority over all places purchased by the consent 
of the legislature of the state, in which the same shall be, for the erec¬ 
tion of forts, magazines, arsenals, dockyards, and other needful build¬ 
ings note also the act of congress of March 20, 1794, § 3 : “It 
shall be lawful for the president of the united states to receive from 
any state (in behalf of the united states) a cession of the lands on 
which any of the fortifications aforesaid . . . may be erected,” etc. 
This referred to sites of forts, arsenals, etc., generally. 

The action of New York in the matter is shown in one hundred and 
fifty-seven, or more, different acts, to be found in the revised statutes of 
1859, in which she granted to the united states, as to any other owner, 
as many different tracts of land, under conditions which she, as a sove¬ 
reign grantor, imposes, and which are in every case accepted. The 
following, which is in the act ceding the use and jurisdiction of lands 
adjoining the Brooklyn navy-yard, is a fair specimen : “ The united 
states are to retain such use and jurisdiction so long as said tract 


THE STATES ACT AS SOVEREIGNS IN THE UNION. 341 


shall be applied to the defence and safety of the city and port of New 
York, and no longer.” “ But the jurisdiction hereby ceded, and the 
exemption from taxation herein granted, shall continue, in respect to 
said property, and to each portion thereof, so long as the same shall 
remain the property of the united states, and be used for the purpose 
aforesaid, and no longer.” 

So with the federal “jurisdiction over ... a tract in the town of 
Watervliet,” the site of the great arsenal: “ The united states are to 
retain such jurisdiction so long as the said tract shall be applied to the 
use of providing for the defence and safety of the said state, 
and no longer .” 

Further quotation is unnecessary. It is hoped the reader will 
refer to and read some of the one hundred and fifty-seven statutes 
aforesaid. 

New York, then, is Absolute on her Soil. — It is certain, then, 
that as the United States is a party to these proceedings, declarations, 
and grants made by New York, long after the present federal consti¬ 
tution was established, never objecting or protesting, but accepting 
the conditions, there has never been the slightest abatement of the 
sovereignty of that commonwealth; and that the united states enters 
upon her soil solely by virtue of her authority, with her permission, 
and for the exclusive purpose of promoting her defence and safety. 
And New York receives the united states in two capacities : First, as 
a simple property-holder on the same footing with other owners; sec¬ 
ond, as a sort of viceroy or commission of the sovereigns in league, to 
do the “ business ” of their “ defence ” on their respective territories, 
and with their authority and means, — Uncle Sam to continue doing 
this “ business ” as long as he uses the said foothold, authority, and 
means in “ providing for the defence and safety of the said state, and 
no longer .” 

Surely no king of earth was ever more of a sovereign than New 
York ! If Fort Lafayette, standing on her conditional and defeasible 
grant, menace her with attack and destruction, if she do not yield her 
will at the command of the said Uncle Sam, should she, and would she 
not, with guns, speak her judgment, annulling the federal tenure 1 
If she cannot rightfully act so, in such an exigency, she is a prov¬ 
ince, and not a state, a subject, and not a sovereign, having returned 
to the condition she held under Britain, and nullified the American 
revolution! 


CHAPTER IX. 


OTHER SOVEREIGNS LIKE NEW YORK. 

N EW YORK, then, exhibits herself and appears, in the present 
federal system, as the absolute sovereign within her bound¬ 
aries ; and the association called “ the united states,” so far as relates 
to its foothold, to its use and occupation of property, and to its gov¬ 
ernmental jurisdiction on the soil of New York, appears simply and 
only as her agent and grantee. Nay more, all of New York’s grants 
of sites for forts, navy-yards, lighthouses, etc., are accepted from her, 
by the said associated states, on the express condition, in each case, 
that they “are to retain such use and jurisdiction, so long as the 
said tract shall be applied to the use of providing for the defence and 
safety of the said state, and no longer.” 

On New York’s soil, federal authority is solely her own authority, 
delegated for her own purposes; her safety, and the security of her 
sovereignty, or right of self-government, being the vital objects; and 
those who act in wielding the same only appear as “ representatives,” 
“ agents,” “ servants,” and “ trustees,” as the fathers all habitually 
called them. 

There can be no possible question that this is the correct view, for 
New York has, from the beginning to this day, kept the solemn 
declaration in her fundamental law—and she entered the union with 
it — that: “No authority shall, on any pretence whatever, be exer¬ 
cised over the people or members of this state, but such as is, or shall 
be, derived from, and granted by, the people of this state.” 

I cursorily review New York’s case at the opening of this chapter, 
because it is, in principle, that of the rest, as will now be seen. 

Queen Massachusetts speaks idem sonans. — This federalized 
or leagued sovereign, like New York, grants the sites of forts, navy- 
yards, lighthouses, etc., which she thinks necessary for the “business” 
of “providing for” her “defence” and “welfare,” to the associated 
states, to be held so long as the said “ business ” remains entrusted 
to said states. Her conditions are the same as New York im¬ 
poses. Her status is precisely that of New York. Her fundamental 


OTHER SOVEREIGNS LIKE NEW YORK. 


343 


law and her whole history show that all federal authority exercised 
on her soil is delegated by her, and remains hers; and that all 
federal sites and jurisdiction are to be used solely for her “defence 
and safety,” leaving her sovereignty unabated. For example, in the 
act of June 25, 1798, she cedes Castle Island, in Boston harbor, to 
“ the united states,” declaring that “ all civil, and such criminal pro¬ 
cess as shall issue under the authority of this commonwealth, . . . 
may be executed therein, in the same way and manner as though 
this cession and consent had not been made and granted.” See 
also the act of June 17, 1800, “authorizing the united states to 
purchase the site for the navy-yard at Charlestown”; and the acts 
of June 20, 1795, and June 20, 1816. These sites are to be used 
for “ the defence and safety of the state; ” and the sovereign de¬ 
clares in some, if not all, of the acts, that when the federal foothold 
ceases to be used for the purposes contemplated, the grant of it is to 
be void, and of no effect.” 

In her revised statutes of 1836, page 56, will be found the follow¬ 
ing : “ Of the jurisdiction of the commonwealth, and of the concur¬ 
rent jurisdiction of the united states, over places ceded by the 
commonwealth: — Section 1. The sovereignty and jurisdiction of the 
commonwealth extend to all places within the boundaries thereof; 
subject only to such rights of concurrent jurisdiction as have been, or 
may be, granted over any places ceded by the commonwealth to the 
united states. Section 2. The several places here following, which 
have been ceded to the united states for forts, arsenals, dockyards, 
lighthouses, hospitals, and other purposes, and over which concurrent 
jurisdiction has been granted to the united states, shall continue 
to be subject to such concurrent jurisdiction, according to the tenor 
and effect of the respective laws of this commonwealth, by which 
they were so ceded.” Then follow designations of about fifty fed¬ 
eral sites. 

The Voice of Pennsylvania on the Subject. — In her cession 
of Mud Island, she specifies the use, makes the grant void if not 
within a year accepted, wfith conditions ; and provides that “ the 
jurisdiction of the state of Pennsylvania over the said island, in civil 
and criminal cases, be the same as before the passage of this act.” 
See also act of assembly, Feb. 1, 1796. 

The act of April 18, 1795, provides for the survey and cession of 
several tracts at Presqu’ Isle on Lake Erie, “ for the accommodation 
and use of the united states, in erecting and maintaining forts 
thereon,” to be held by “the united states so long as they shall actu¬ 
ally maintain a fort thereon, and no longer.” This act contains the 
following : “And it is the express intent and meaning of this act that 


344 


SOVEREIGNTY IN THE UNITED STATES. 


nothing herein contained shall be deemed, construed, or in anywise 
taken to cede and transfer unto the united states tehe jurisdiction or 
right of soil in and to the said three last-mentioned lots, but only the 
occupancy and use thereof, for the purposes aforesaid.” 

Pennsylvania thus shows herself to be absolute in her territory, 
and she only admits the federal government therein as the agent of 
the federation, to occupy and use definite portions of her soil for her 
“ defence and safety,” while she keeps her sovereignty and jurisdiction 
unabated. 

Old Virginia acted in the Same Way. — In her code of 1849, 
is found an enumeration of the sites for the erection of forts, maga¬ 
zines, arsenals, dockyards, etc., the jurisdiction over which is granted 
by her to the united states. There are nearly a score of them, in¬ 
cluding Old Point Comfort and the Rip Raps. The chapter concludes 
as follows: “And the transfers of property and jurisdiction, author¬ 
ized by the said acts, being subject to certain terms and conditions 
therein expressed; and with certain restrictions, limitations, and pro¬ 
visions therein set forth : It is hereby declared that this state retains 
concurrent jurisdiction, . . . and its courts, magistrates, and officers 
may take such cognizance, execute such process, and discharge such 
other legal functions within the same as may not be incompatible with 
the true intent and meaning of the said acts.” 

The act ceding soil and jurisdiction at Old Point Comfort (Fortress 
Monroe) contains the usual limitations, conditions, and reservation of 
jurisdiction, and concludes as follows: “ And be it further enacted, 
that should the united states at any time abandon the said lands and 
shoals, or appropriate them to any other purpose than those indicated 
in the preamble to this act, that then, and in that case, the same shall 
revert to, and revest in, this commonwealth.” 

The Understanding of South Carolina. — President Jefferson re¬ 
ported to congress, February 3, 1806, “an act of cession, of the state 
of South Carolina, of various forts and fortifications, and sites for 
the erection of forts, in that state, on the conditions therein ex¬ 
pressed.” 

Her act of December 19, 1805, provides that hereby is granted to 
the United States of America all the right, title, and claim of this 
state to the following forts, and sites for the erection of forts, etc.: 
Five acres at Fort Moultrie; twenty acres at Fort Johnson; three 
acres at Fort Pinckney; two acres of “ the sand-bank marked ‘ C ’ in 
the plan of Charleston Harbor,” etc. It is provided that commis¬ 
sioners are to survey and locate; that if the united states shall not 
repair the present, and build certain new fortifications, “this grant or 
cession shall be void and of no effect;” and that “all process, civil or 


OTHER SOVEREIGNS LIKE NEW YORK. 


345 


criminal, issued under the authority of this state, or any authority 
thereof, shall, and*may, he served and executed on any part of lands, 
sites, forts, and fortifications so ceded by this act, and on any person or 
persons there being, and implicated in matters of law.” 

The act, then, requires that “the United States” “shall, before 
possession be taken of said sites, . . . pay due compensation to the 
owners;” and it exempts, in favor of “the United States,” the prop¬ 
erty it thus allows that association to acquire, occupy, and use, from 
taxation. 1 

How distressing this revelation must be to the Websterian ex¬ 
pounders of the day, such as Curtis, Pendleton, Adams, Jameson, 
Mansfield, Greeley, Lincoln, and others! What! must this great “ na¬ 
tion,” or great “ union,” or great “ united states ” go only as an agent 
into South Carolina, and under her grant 1 Must this mighty and 
august “ union,” or association, acquire its property in South Carolina 
just as John Smith does 1 Does it have no right of occupancy, use, 
or jurisdiction on the soil of South Carolina, but what it suits her to 
grant 1 ? Must Uncle Sam be exempted from taxation, just as Uncle 
Tom or Aunt Sally would be 1 ? And must this potentate hold his 
occupancy, use, and jurisdiction in South Carolina “ so long as ” 
he uses them “ for the defence and safety of this state, and no 
longer ” 1 

Are all these grants or cessions to be “void and of no effect,” if the 
conditions afore-mentioned be violated h And are they primarily for 
her benefit, and subject to her will, so that she can raise her little 
foot, and (with no other restraint than the fear of getting whipped) 
kick the said avuncular relative out of her premises, if he violate 
her conditions, insult or menace her, or attempt her harm or destruc¬ 
tion 1 

And when it is tritely said that “the military is subordinate to the 
civil power,” do we mean that federal soldiers and officers, to wit, “the 
army and navy of the united states” and “the commander-in-chief” ! 
are subordinate to, and never above, the civil power of South Carolina, 
i. e. her sovereignty and right of government 1 

All these questions are to be answered in the affirmative. And 


1 For numerous acts of cession on conditions and defeasible, see X. Stat. of S. C., 
pp. 74, 589, et seq. After much inquiry and considerable research, aided by friends of 
ability in South Carolina, I am almost forced to the conclusion that the united states has 
never had any title to the site of Fort Sumter. One of them says: “ The view that this 
fort has never been ceded is much strengthened by the ordinance of Apriji 18,1861, which 
makes a general grant to the Confederate States of the occupation and use of all the forts, 
etc., lately in possession of the united states, together with Fort Sumter,” etc. Is it 
possible that Uncle Sam was on Miss Carolina’s premises by her permission and for her 
uses, and that he threatened to shoot her, if she did not let him be master ? 


346 


SOVEREIGNTY IN THE UNITED STATES. 


history shows that these were the views of the fathers, so far as they 
expressed themselves on ultimate sovereignty and final remedies. 

All historical evidence shows South Carolina to have been, and to 
have intended to remain, an absolute sovereign; to have used her own 
exclusive reason, judgment and will in making a voluntary union with 
her sister states, to “ provide for ” her and their “ defence and safety 
and, finally, like New York, Massachusetts, and Pennsylvania, to have 
confided her powers, men, and means, and permitted federal foothold 
on her soil, on the express condition that “the United States ” was to 
hold and use them “ so long ” as they were “ used for the defence and 
safety of the state, and no longer.” 

So say the New States. — As the universally accepted principle 
was that new states, admitted by the congress of the states , from time 
to time, into the union of states [Art. IV., § 3], became equally “sove¬ 
reign, free, and independent,” they are naturally to be expected to 
have similar records as to the subject in hand. For instance, Alabama 
provides that “the united states may acquire and hold lands within 
the limits of this state, as sites for forts, magazines, arsenals, dock¬ 
yards, etc., as contemplated and provided by the constitution of the 
united states ” [Ala. Code, Art. III., § 21, p. 61]. “ The governor . . . 

is authorized, on the part of the state, to cede the united states juris¬ 
diction over such lands, to hold, use, and occupy the same for the 
purposes of the cession, and none other. The jurisdiction thus ceded 
does not prevent the execution, on such lands, of any process, civil or 
criminal, under the authority of this state, nor prevent the laws of 
this state from operating over such lands ” [Ibid. § 22]. Alabama 
then proceeded to provide for the security of united states property, 
and exempt it from taxation. 

Surely, where the only foothold and jurisdiction the union of states 
can have in a state, is granted by the latter on conditions that the 
same is to be used for certain purposes, and no others, and be held 
just so long as used for the defence and safety of the state, and no 
longer, the proper conclusion or principle is, that the state is sove¬ 
reign, and that the governmental agency of the united states (the said 
states being themselves the government) is subordinate to, and with¬ 
out control over, the state. 


CHAPTER X. 


SOVEREIGNTY IN THE NEW STATES. 

I MPORTANT quotations apposite to this subject are to be found in 
Chapter VII. of this Part. Of the great publicists quoted, Mon¬ 
tesquieu and Vattel were, at the time our federal polity was established, 
the best authorities of the world on public law and political philosophy ; 
and they — especially the former — greatly guided and influenced our 
fathers in their grand work. 

These publicists laid down the principle that republican states can 
make of themselves “ an assemblage of societies, that constitute a new one, 
capable of increasing by new associations. ” Such confederation, being 
“ composed of small republics, it enjoys the internal happiness of eachf 
while, by uniting their strength, means, and wisdom, they have “ all 
the advantages of large monarchies.” They do not, by uniting, part 
with their sovereignty. 

The idea, on the one hand, is that the individual, self-governing 
people can, in small communities, ascertain, comprehend, and act upon 
the comparatively few facts necessary for self-government and the pro¬ 
motion of “ internal happiness,” while they could not possibly do so 
over an immense area and population. The idea, on the other hand, 
is, that all these societies or states shall, as one state, hold relations 
with the outside world, and be able to command respect as a member 
of the family of nations. 

Here, in epitome, is the very system which our fathers sought to 
establish. It suits, with expanding autonomy, our growing country and 
rapidly increasing people, and assures to all Americans, however distant 
in space or time, the safety of their inherited “ blessings of liberty ” ! 

Of course our statesmen must have expected that the thirteen self- 
governing peoples, which they were then inducing to federalize them¬ 
selves, would greatly “ increase by new associations ,” so that, in time, 
through natural growth and immigration, commonwealths or republics 
would be spread over this vast continent, each enjoying the priceless 
“ blessings of liberty ” and autonomy, — “ representative democracy 
and the federalizing of states,” to use Joel Barlow’s expression,— 


348 


SOVEREIGNTY IN THE UNITED STATES. 


being “the consoling principles” “on which we have founded our 
constitutions.” 

Our system, then, is “ representative democracy,” i. e. societies of 
people governing themselves through “ substitutes and agents,” and 
the federalizing of states to form “ the united states.” The adding 
of new states, from time to time, and the growth of all in population, 
wealth, and power, have resulted in our present grand sisterhood of 
thirty-eight commonwealths, — the republic of republics. I now pro¬ 
ceed to consider 

The origin of new states, their sovereignty or right of self- 
government, and their relations with the rest, and with the common 
government; and, at the outset, I assume and expect to show that all 
the commonwealths, old and new, are absolutely equal, and are the 
real governments of the land, and the source of all law, — they, as 
republics, governing themselves, both separately and federally, and 
being subject to no power on earth. 

In discussing the formation of new states, we have primarily and 
principally to do with men. 

“ These constitute a state ; ” and we must consider them in two 
aspects: First, as human beings, created as free moral agents, and 
thus endowed with the right of self-government by Deity. [See 
Part V., Ch. IX., infra.'] Second, as citizens or subjects of a state, 
w T ho obey the social instinct in uniting themselves for self-protection 
and self-government, the obligation of the body being to govern and 
protect, while each member’s reciprocal one is to obey, support, and 
defend, these mutual obligations being the real social compact, — an 
entity resulting from actions, which speak louder than words. Thus 
do “men constitute a state.” [Part IV., Chs. I. and II.] 

The right of self-government in man is the germinal idea of all 
republicanism. It is the starting-point and test of all our political 
problems. Men are the source of all governing power. They, as 
individuals, are subject to themselves as a commonwealth. This is 
self-government. Moreover, the right of self-rule in man is to be 
abridged only by his consent, he and his associates in conjoint self- 
government virtually saying : “ I remit to the society we form, certain 
acts, to be done by and for all, on all, and agree not to do them 
myself.” So it is with the right of self-rule in states, as “ moral per¬ 
sons ” or bodies-politic. In federating they virtually use the same 
words. No abridgment is rightful unless based on voluntary consent. 
The society is the home government — the societies the general one. 

We now see alike the natural origin of new states, and the evidence 
of their equality. We must regard men as equal, and the bodies they 
form as equal, all being under only voluntary engagements. This is 


SOVEREIGNTY IN THE NEW STATES. 


349 


political freedom. It is the rope of sand so many thoughtless people 
whine about, — the strongest cohesion possible to any really republican 
people, but the weakest, as it ought to be, where truth, justice, amity, 
and mutual interest are gone, and where government stands by armed 
force, instead of the suffrage of human hearts. 

The people, as the collective body called the state, have the corre¬ 
sponding collective heart, mind, reason, judgment, will, and con¬ 
science, the essential faculties of a moral being, — a being that must 
have the collective instinct , and of course the collective right and 
duty , of self-preservation. 

We see also that men are naturally in society, and that these indi¬ 
vidual self-governors or voters must require that the area covered by 
the society should be small, with facile methods and means of finding 
facts and exchanging views, so as to reason and judge upon them in 
the performance of their governing duty. The larger the field the 
less intelligently the people can act in electing their agents, and hold¬ 
ing them to duty and account. And it follows that, as to our general, 
outside, inter-state, and international affairs, these self-governors must 
regard them as too distant and difficult to comprehend, and therefore 
must send special and fit agents, with written powers, to attend to 
them. 1 

The rationale of our system, and the wisdom of our fathers, are 
thus shown. Just think of an Oregonian farmer investigating Flori-. 
dian affairs, to get the facts on both sides of every subject, for that 
judgment which a vote is, if it is anything at all, when the poor fellow 
is not even properly informed as to his own county’s affairs! Just 
think, too, of statesmen resolving, at the end of one hundred years’ 
experience of our system, that our fathers’ wisdom is foolishness, that 
these “ states is a nation,” and that each citizen thereof must investi¬ 
gate, understand, and vote his judgment on all the said nation’s 
affairs, local as well as general! for such is necessarily the duty of 
the members of a self-governing nation. 

Let us now see the historical 

Distinctness of the first new states on the continent of America, 
when they were, so to speak, widely separated islands in a sea of bar¬ 
barism. The self-protection and self-government of the colonists, by 

1 “It is natural to a republic,” says Montesquieu, “to have only a small extent of 
territory, otherwise it cannot long subsist. ... In large republics, the public good is 
sacrificed to a thousand views ; in a small one, the interest of the public is easily per¬ 
ceived, better understood, and more within the reach of every citizen ; abuses have a 
less extent, and, of course, are less protected.” He also shows how Sparta lasted, be¬ 
cause, after its wars, it did not extend its area, and how Athens and Lacedaemon, by 
ambition to go outside, control the union, and become large, lost their liberty to a mon¬ 
archy. Note the immense republics of France, and the revolution-breeding centralisms 
of Paris. 


350 


SOVEREIGNTY IN THE UNITED STATES. 


collective action and in collective forms, were aimed at; and so it will 
be as long as time and men shall last, and new commonwealths be 
formed. 

Referring now to the beginning of the first chapter of this work, as 
well as Chapter I. of Part IV., both of which should be read herewith, 
I wish to impress on the reader’s mind that most striking fact, that 
in all the history of the rising states, their absolute separateness and 
individuality was never for a moment doubtful. There were tempo¬ 
rary leagues or unions for common defence, in which they always acted 
with that entire and independent individuality, which would be exhib¬ 
ited in the joint action of so many men. Not only so, but there were 
imperative reasons why no coalescence or joinder of population on any 
national basis, could or should have been made; and we know that, 
no matter what was done previously, the second of the articles of con¬ 
federation and union pledged the faith and strength of all the states 
to each, that she should be independent in existence as a state, free 
in will, and sovereign in authority, with no pow T er out of her but what 
was expressly delegated to the united states, and entrusted to the 
federal agency, to be used for her and her united sisters. 

Aside from the isolation above referred to, let us look at 

Their different forms of polity, which were of three origins and 
kinds: — 

1. The provincial form , in which the crown commissioned govern¬ 
ors, and appointed a council which formed an upper house, while the 
planters elected the lower one of the legislature. 

2. The proprietary form , in which the proprietor appointed gov¬ 
ernors, and authorized legislators. It was a kind of feudatory prin¬ 
cipality or county palatine. 

3. The charter governments , which were political corporations. The 
governor was named by the crown. The people elected the general 
assembly. Both frame and powers of government were provided for 
in the charter. [See I Story’s Com. § 159 ei seq.~\ 

These three kinds of government were so interlocated that any 
combination in governmental action, except by league, was simply 
impossible, and the idea of it absurd. New Hampshire was provin¬ 
cial ; Massachusetts and Connecticut, chartered; New York, provin¬ 
cial ; Pennsylvania and Maryland, proprietary; Virginia and the 
Carolinas, provincial, and Georgia chartered. To say nothing of the 
proprietors living in England, no coalescence could be had without 
the assent of the sovereign mind, which always presumably preferred 
their separateness. Divide et impera ! 

Separateness in Religious Faith. — As to their possible religious 
yearnings to be in sweet communion joined, following their colloca- 


SOVEREIGNTY IN THE NEW STATES. 


351 


tion, we find them Puritan, Baptist, Dutch, Swede, Quaker, Catholic, 
Episcopalian, Huguenotic, etc. 

For these and other reasons, the colonies were probably no more 
disposed to become one state, or a nation of provinces, than so many 
states in Europe were. Their common circumstances, common de¬ 
sires, and common needs caused some common sentiments and views. 
A mere shade of general public opinion prevailed, and much general 
sympathy was felt, — about as much, I presume, as is usually found 
among neighboring and friendly states. 

Their neighborhood, similar history and traditions, their inter¬ 
colonial amity and sympathy, their like principles as to freedom and 
government, and, above all, their great and menacing danger from 
their powerful sovereign and foe, did actually cause them to propose 
joint action, and did finally consolidate them into a military phalanx 
of states, each absolutely free in will, but all united in a heroic effort 
for their independence. Their motive and thought took the form of 
a motto, — “united we stand, divided we fall, ”— but it was as dis¬ 
tinct states that they were to unite to avoid falling. Each had its 
own absolute individuality; its own peculiar representation in any 
joint action; its own esprit de corps and will; and its own instinct 
of self-preservation, which, of course, involves the right and duty of 
self-preservation. 

The Myth of Nationality. — Some latter-day writers boldly assert 
that a spirit of nationality showed itself early, and grew in strength 
till independence, when it culminated in that more intimate union the 
people yearned for, which they call the nation; and one of them 
spends a hundred pages or more describing “ the birth of the nation,” 
without giving a fact, or phantom of a fact, evidencing such monstrous 
event. It is as fabulous as the phoenix ! Every fact of history con¬ 
tradicts the theory, and shows that all the acts and thoughts of the 
people and their leaders, were of voluntarily united states — federal¬ 
ization instead of nationalization. 

What do these astonishing writers mean *? Is it to no purpose that 
Fisher Ames, Theophilus Parsons, Samuel Adams, John Hancock, 
Governor Bowdoin, and others all declared, in the Massachusetts 
ratifying convention, without the dissent of a single friend of the 
constitution, that the nationalizing theory was unfounded; that “ a 
consolidation of the states” “ would subvert the constitution; ” and 
that “too much provision cannot be made against it”'? [Supra , 
Part II., Ch. II.] Is there no weight in the fact that Hamilton, 
Madison, Washington, Livingston, Marshall, Pendleton, and others are 
on record to the same effect, that they vigorously met this very issue, 
and, by their signal triumph, barely saved 'the proposed system from 


352 SOVEREIGNTY IN THE UNITED STATES. 

defeat 1 Will mere audacity of unfounded assertion, at this late day, 
unwrite the written history of .Massachusetts, which, in every line and 
word, supports the separateness of existence, freedom of will, and 
absolute sovereignty of the state in the union 1 

Why should we, the grown and educated men of the country, with 
our knowledge of one hundred years of federal history and “ federal 
liberty,” be told, and compelled to swallow, the false and foolish dogma 
that these “united states is a nation,” — an idea dignified by suppos¬ 
ing it to emanate from debating boys, who have not yet reached their 
historical and grammatical studies % Let us now pass on to 

The New States of Latter Days. — I have argued to little purpose 
if I have not made it obvious that we must accept, in our arguments, 
the free man and the free state, — the free men, who contract to be in 
society, and the free societies, who contract to be in union, the tie in 
both cases being a voluntary engagement. [Vattel.] 

Nay, more, Americans must of necessity always assume the capacity 
of man for self-government; for we have unceasingly vexed the ear of 
the world with the assertion of it; and we point proudly to Massachu¬ 
setts, Connecticut, Virginia, Georgia, and other states, as having respec¬ 
tively governed themselves, through generations, with signal success. 

Again, we must consider that the people rule themselves of original 
and inherent right , both locally and generally; for, as Madison says, 
in Number 46 of the Federalist: “ The federal and state governments 
are, in fact, but different agents and trustees of the people, instituted 
with different powers. . . . The ultimate authority resides in the people 
alone.” 

States are Societies based on the Heart. — Again, we must keep 
it in view that all republics are based on the human heart. Men 
consociate to gain what they, in their hearts, desire, hope for, and feel 
the need of; they press forward with confidence and energy into the 
future, and into the wilderness, to better their condition; and they 
strive for wealth and the objects of ambition, and yearn for the hap¬ 
piness of domestic life. They are moved to daily action and duty, 
and even to dare danger and death, by the hold on their hearts that 
home, family, kindred, friends, neighbors, and fellow-citizens have; all 
these being in the society, or commonwealth, to which they belong, 
and which they necessarily form by coming together under the recipro¬ 
cal obligations heretofore mentioned, — the obligations of the social 
compact. Here is their only conceivable tie of allegiance. They are 
bound to and in the society that “ 'protects ” them, promotes their “ wel¬ 
fare” and secures their “ blessings of liberty ” In short, allegiance is 
due to themselves, — due by each to all, — no king existing hereabout 
for allegiance and loyalty but King People ! 


SOVEREIGNTY IN THE NEW STATES. 


353 


How Men become New States, and these Sovereign. — In start¬ 
ing to find the above, let us keep it in view that the American people 
are not only subjects (i. e. members and citizens) of states, but the 
states themselves. They as such own all the territory, and have sove¬ 
reignty over it. Each state is sovereign over that within its own 
borders, — all are jointly sovereign over that without the states. 

Now it would be absurd to say that men can, when only subjects, 
and out of the society in which alone they have governing capacity, 
go on the territory of the united sovereigns, and, by simply associ¬ 
ating themselves, generate a sovereignty there, which shall supplant 
the sovereignty of the united states! This is the “ squatter sove¬ 
reignty ” doctrine, as taught by Cass and Douglas. 

The congress of states has the right to say, and practically does 
say : “ You pioneers or settlers have the privilege of emigrating to, and 
occupying, the territory of the united states, within certain limits, on 
condition that you organize yourselves, abide by the law, keep order, 
observe morality, promote education, etc.; so that, when sufficient in 
numbers, you will show capacity for self-government, and fitness to be 
an equal in this community of communities, or republic of republics.” 

The Status and Rights of a Settler. — Once a subject always one , 
is perhaps as true in a republic as in a monarchy. He must be a 
member of society, a part of government, and a subject of law. Being 
a republican, however, he can change his societal connection at will; 
but no expatriation is, or can be, recognized, which would exempt him 
from societal duty and law. Even if not generally implied in social 
compacts, some of the states seem to express it. Thus Vermont de¬ 
clares that “ all people have a natural and inherent right to emigrate 
from one state to another that will receive them.” 

The intending members of the new state, then, go with the per¬ 
mission, and form society under the protection of the sovereigns — 
the united states; and, with the status of men and citizens , they per¬ 
fect or consummate the transfer of their citizenship, when the new 
state is completed, and her equality is acknowledged by the congress 
of the previous states. “ New states may be admitted by the con¬ 
gress into this union.” [Constitution, Art. IV. § 3.] 

Whence comes the New State’s Sovereignty ? — The germ of 
this right of self-government is inherent in man, as has been shown. 
The complete sovereignty is inherent and original in the collective 
people, though on the federal domain it is in abeyance for want of 
right to exercise it; the case being much like that of a man abroad 
from his commonwealth, who, though he has the status of citizen, 
cannot in many respects use it. For example, General Grant was a 
citizen and subject of Illinois before, during, and after his presidency 

23 


354 


SOVEREIGNTY IN THE UNITED STATES. 


and his travels, but he could aid in ruling, only at home, and under 
the state, — that is, when properly circumstanced. 

Is it not obvious, then, that the congress of states, by admitting a 
new state, acknowledges her equality, and her sovereignty over her 
domain, as well as her equal right to participate in federal govern¬ 
ment ; but does not confer sovereignty by the admission 1 

We must note that the power of congress is not one to admit a 
province, or other subdivision or dependency, or any body of lower 
grade than a state, i. e. a political organization of equal rank with those 
already in union. 

With deference, I submit some reasons for this view : — 

The power to admit states must be strictly confined to what is 
written. Without some expression, it cannot be presumed that the 
states intended to have any inferior bodies in the union. Webster’s 
powerful argument for imposing conditions on Missouri [see Appen¬ 
dix F] was not followed; but the opposite principle seemed to pre¬ 
vail. Among other advocates of it, the great Clay, in 1819, came 
down from the speaker’s chair, and argued five hours against condi¬ 
tions, and hence for absolutely equal states. 

The technical word “state” is applied, in the constitution, to New 
York, Virginia, Maine, and Texas, just as it is to France, Italy, Russia, 
and Spain. [Art. III. § 2 ; Amendment XI.] And the very thing 
that makes a state differ from any inferior political organization, is 
sovereignty. As Daniel Webster said — when the constitution uses 
well-known language, it uses it in its well-known sense. 

Again, at the very moment of using the word “ state,” to designate 
one of the parties that were to ratify and establish the new constitution, 
the then existing league or federal compact pledged the faith of all 
the states, that each w T as a sovereign one, up to the actual going into 
effect of the new system. [See the 2d article of Confederation.]. And 
this equal sovereignty of the states in the union, was the view of all 
the leading fathers. [See Part I., Chapter VII.] 

And, finally, the country has always acted on this idea, for North 
Carolina, Rhode Island, and Texas were confessedly admitted as abso¬ 
lutely equal, while the ordinance as to the northwest territory, and 
the Louisiana treaty, provided for the admission as equals of the 
new states to be carved thereout. Can you think, dear reader, of 
any political difference between Ohio and Connecticut, Virginia and 
Missouri, New" Jersey and Texas, Georgia and California, as to status , 
capacity, or rights! Has not each her name, people, organism, au¬ 
tonomy, and place and representation in union! Can it be that the 
common governmental agency of these sisters holds discretion to treat 
them otherwise than as absolute equals 1 


CHAPTER XI. 


THE ULTIMATE ARBITER. 

O IST the questions of ultimate supremacy and self-preservation, the 
fathers seldom did more than incidentally speak, but, as far as 
they went, they spoke plainly; and all the history of establishing the 
American federal polity shows, that, in devising the system, they 
assumed the existence, integrity, and sovereignty of the states, as 
pre-existent and indestructible facts or entities. The great aim of all 
was to preserve the said communities, and unite their authority in the 
general government of their subjects, and their strength in their com¬ 
mon defence. To these ends, the said thirteen communities, which 
the people were, federally made an agency, and charged it with a few 
important specific duties. As to such matters as prevention, defence, 
and remedy against evils, dangers, attacks, and hurts, local and inter¬ 
nal, — these pre-existent commonwealths, each with full mental and 
governing faculties, original right, and unlimited power, took natural 
cognizance, and made full provision. The capacity, the authority, 
and the duty of self-defence must be where dwells the original and 
inherent mind; for the idea of direct mental, or instinctive, control of 
physical force is necessitated; and, as attack and hurt are local, the 
original right, the self-capacity, the self-power, and the sense of duty 
must be on the spot, feeling, knowing, and acting at once, and di¬ 
rectly, for defence or repulsion. Where harm can come, the power 
and duty to protect and remedy should be near. 

No Federal Capacity or Duty for Direct Local Defence. — On 
the other hand, the federal “ agents and servants,” as the fathers call 
them, are far removed from the troubles; they only act with dele- 
gative authority, and as directed in writing; they are charged with a 
few important general affairs, and prohibited from meddling with 
local ones; they are not in duty bound even to know of, originally, 
much less act on, danger or harm in a state, but must await official 
advices of it, as well as a formal official call for aid, — if this be 
needed, — a call not made on them, but on associated sovereigns, 
under a treaty stipulation, — a call which the government can respond 


356 


SOVEREIGNTY IN THE UNITED STATES. 


to, only as an agent and servant. A million cases of domestic vio¬ 
lence might occur, without the power, duty, or even attention of the 
federal agency being required; and in our ninety-odd years of federal 
history, we have had but two or three such exigencies. 

It is obvious, then, that all the essentials and ideas of ultimateness 
are concentred in the commonwealth, where the inherent and origi¬ 
nal mind dwells, and, in self-defence, directly and functionally acts, 
with'its own organs and instruments; and where Jehovah has placed 
both the power and the duty of self-preservation. And it seems to 
follow necessarily : 1st. That the state is the ultimate arbiter on all 
questions — certainly, on all that touch her existence, integrity, and 
sovereignty; 2d. That as the only questions the states, as the estab¬ 
lishes of the constitution, intended to place under their federal gov¬ 
ernment and courts, were selected and stated in the federal instrument, 
all thereout must remain inter-state or international in their charac¬ 
ter ; 3d. That all interpretation or construction must be in favor of 
the grantors and against the grantees of powers; and 4th. That any 
federal official, to save himself from the stain and infamy of perjury, 
must show the written intent of the people to be, that he shall have 
the specific powers he claims and uses. And here I would stop and 
ask of the federal judiciary — with due respect, but most solemnly and 
earnestly — to show the power or powers that make them and their 
co-ordinates “supreme and above the states ” that gave them official 
existence; ratified and established their only commission; and exacted 
their oath to obey and preserve it. 

But let us proceed further on this line, and ask the question, in 
reference to the “ terms of union,” as the fathers called them, or the 
“ articles of union,” to use the federal convention’s phrase : 

Who is to Judge of Broken Conditions and Forfeitures? — On 
reflection, we shall see that when South Carolina (or Massachusetts) 
federalized herself, she was acting with her own will, from the instinct 
and with the duty of self-preservation, under the direct authority of 
God, Who, by making the social instinct a part of man’s being, caused 
society as much as He did man, and made “ self-preservation the first 
law of nature” for both. 

Self-preservation of the state, then, being the object of both the 
grants and the conditions, who is to judge as to the violations of the 
conditions and the forfeiture of the grants, the grantor or the grantee ? 
the sovereign or the subjects the principal or the agent? the master 
or the servant ? The question needs no answer. The God of nature 
has determined it as to any state — for instance, South Carolina, 
New York, or Massachusetts — by making self-preservation the first, 
best, and most imperative law of her being, and giving her a distinct 


THE ULTIMATE ARBITER. 


357 


and independent intellect with which to investigate, reason, judge, 
and will. The possession of mind constitutes the moral being, and 
implies moral obligations. The state’s instinct and duty of self-preser¬ 
vation, like her bodily and mental individuality, continued unchanged 
after the union was formed, so that she was morally compelled to 
consider and decide — and especially in the last resort — any and all 
questions affecting her being, her integrity, and her right of govern¬ 
ment. And under the reciprocal obligations between Massachusetts 
(or South Carolina) as a body, and the members composing her, she 
is to govern and protect them, and they are to obey and support her. 
These duties are essential to the republican social compact. Her 
statehood and sovereignty involve their liberty. They are she, and 
she is they. This compact is the only possible tie of allegiance, for 
the state stands in place of king, prince, or feudal lord. [IV. Kent, 
424.] They are bound to defend her, and she them, to the death. 
This is the law of their nature and of God. She cannot delegate the 
power to decide in the last resort, but must exercise it herself. If 
she do not, she abandons statehood, and becomes a province or county, 
gives up her mental nature and will, neglects the highest of moral 
duties, violates the sacred law of her God-given being, and, in a word, 
commits the heinous crime of suicide. Hamilton himself, in defend¬ 
ing the present federal pact against the charge of consolidating the 
states, or abating their ultimate sovereignty, said: “ The states 

are essential component parts of the new system ” — “ The destruc¬ 
tion of the states would be political suicide.” [II. Ell. Deb. 304, 353.] 
And he further said : “ The state governments will, in all possible 
contingencies, afford complete security against invasions of the public 
liberty by national authority. In a confederacy, the people , without 
exaggeration, may be said to be entirely masters of their own fate.” 
[Fed. 28.] 

The Pact Itself agrees with the above Philosophy. — In the first 
place, the constitution recognizes throughout, the distinctness of indi¬ 
viduality, and absolute independence of organism, mind, and will of the 
states; and winds up by providing that the said wills are to “ ratify,” 
and thereby “ordain and establish,” the instrument and the govern¬ 
ment under it; each will to be declared by a convention. [See Arti¬ 
cle VII. of the pact.] 

In the second place, it provides that the wills of states are to amend. 
The will to do, and that to undo, must be equal. The power to repeal 
is precisely commensurate with that to ordain and enact. The will 
which “ordained and established,” necessarily lived through the act, 
and continued unimpaired, so that it could, as it was in duty hound 
to do continually, consider whether the constituted government did 


358 


SOVEREIGNTY IN THE UNITED STATES. 


actually “ provide for the common defence/’ and “ promote the gen* 
eral welfare.” The wills of the states necessarily survived, looked 
back on the system, pronounced it good, and must have intended to 
amend, or in the last resort abolish, if it did not continue good, for 
they provided for the power to amend (in Article V.), which includes 
in its nature the power to abolish. If the states are compelled to 
keep that which their respective judgments originally approved, and 
their wills adopted, but which the said judgments afterward find to 
be bad and destructive, surely “tranquillity,” “justice,” “defence,” 
“welfare,” and “liberty” cannot be thereby “provided for” and 
“ promoted.” [See the federal preamble.] 

Both political philosophy and the constitution, then, show Massa¬ 
chusetts (or South Carolina) to be a complete state with a sovereign 
will. Her right and duty of self-preservation are absolute. If en¬ 
dangered, she is bound to defend herself—“peaceably if she can, 
forcibly if she must.” 1 

This is plain common-sense; for these wills, having voluntarily or- 
ordained, could, if not enslaved, respectively undo what they had 
respectively done. It was never denied that the union was volun¬ 
tary when made. When, and by what act, did it become invol¬ 
untary 1 ? When the indissoluble union begins, voluntariness and 
freedom end, and the states are back precisely to the provincial condi¬ 
tion they held under Britain. So that, as to South Carolina, if the 
powers she put in the constitution, and the forts she qualifiedly granted 
the sites of, and j)ermitted to be built, were used, or attempted to be 
used, for her harm and destruction, instead of her “ defence and 
safety,” she was in duty bound to investigate, judge, and will. The 
gun fired at Fort Sumter spoke her decree annulling the federal 
tenure! If she was sincere in believing her being and sovereignty 
endangered, it was rightful and righteous! 

The Expounders Virtually admit this Theory. — Webster and 
the federal supreme court have often unwillingly, or perhaps unwit¬ 
tingly, admitted the statehood and sovereignty of the American com¬ 
monwealths, and their consequent absolute right of self-preservatiop, 
and especially in “The Bank of Augusta vs. Earle.” [13 Peters, 519.] 
In this case they said the federal compact only included and settled 

1 In 1868, at the Virginia White Sulphur Springs, W. S. Rosecrans, A. H. Stephens, 
General Lee, and others, issued a political document to influence the then pending election. 
Among other things it declared that the South had given up forever the right of seces¬ 
sion. In other words, they had alienated or parted with what God had incorporated in 
their natures, and made inalienable. It is evident that the declarants did not under¬ 
stand the source and nature of the right. However, political declarations in America 
are intended more to attract votes than to promulgate truth. Is it not so wherever can¬ 
didates are allowed to solicit them V 


THE ULTIMATE ARBITER. 


359 


the questions it provided for, leaving all others outside, to be settled 
under and according to the jus gentium , i. e. by diplomacy or force. 
This admits sovereign states, and that every question involving the 
integrity or sovereignty of a state must be for her decision. If not, 
she is a slave, and not a sovereign; and she violates her nature if she 
declines the decision, or the enforcement of it. 

The sovereignty of the united states then, to use the expressions of 
James Wilson, who stated the views of the fathers on this subject, 
“ resides in the people ” as they are organized, i. e. it dwells in com¬ 
monwealths ; “ it never leaves them; ” it is “ in the people before 
they make a constitution, and remains in them after it is made.” 
[II. Ell. Deb. 432, 456.] It is well to repeat here Mr. Webster’s 
admission that sovereignty with us has never left the people, and that 
sovereignty cannot be in the government: also Curtis’s admission, that 
our governments are only “ agents and depositaries ” of authority. 

The Guaranty of all to Preserve Each. — The following clause 
(Art. IY. § 4) was especially designed to secure the absolute integrity 
and sovereignty of each commonwealth: “ The united states shall 

guaranty to every state in this union a republican form of govern¬ 
ment, and shall protect each of them against invasion, and on appli¬ 
cation of the legislature, or of the executive (when the legislature 
cannot be convened) against domestic violence.” This clause can but 
mean that all the states guaranty each to be and to remain a repub¬ 
lic ; in other words, that she ( i . e. “ the people ”) shall govern entirely 
and absolutely. “ A republican form of government ” means a repub¬ 
lic ; and there can be no republic unless the people govern themselves 
in everything. 1 

The above-quoted clause means precisely what the second article of 
the first federal constitution meant, to wit: that “ each state retains 
[and its associates are to guaranty] its sovereignty, freedom and inde¬ 
pendence.” It means that the state is to govern herself as to her 
home affairs, and that the states are to govern themselves as to their 
general affairs; and finally, it means that state wills are always to be 
supreme, and are to be bound in union only by virtue of voluntary 
engagements. 

The reader cannot fail to notice that it is everywhere protection and 
defence , and not attack and injury, of states, that the federal polity is 
intended for. I have heretofore shown how the constitution provides 
for “ defence ” of the states, —to use the word of the preamble. We 

1 The liberticides of America pretend that keeping up the “form” satisfies the obli¬ 
gation. So they rule states from Washington, while keeping up simulacra for repub¬ 
lican governments. All will admit that a monarchical form means a monarchy; an 
aristocratic form an aristocracy; and “ a republican form a republic.” 


360 


SOVEREIGNTY IN THE UNITED STATES. 


have heretofore seen that the cessions of occupancy and use of the 
sites of forts, etc., made by the states and accepted by “ the united 
states,” are expressly for “ the defence and safety of the state; ” the 
first part of the clause under consideration “ guarantees ” the contin¬ 
ued existence and absolute self-government of every state; and finally, 
the latter part of the clause requires “ the united states ” to “ pro¬ 
tect” each of the states “against invasion” and “against domestic 
violence.” In short, the states , in making the constitution , and giving 
■powers to their administering subjects , could but intend self-preservation 
and self-defence. 

Expressio unius est exclusio alterius. — The expression of a case 
or cases where the agency can enter the state with force and arms, is 
the exclusion of all other cases. The government, which lives, moves 
and has its being through state will, and is subordinate, can only 
enter states vi et armis, for the purposes of “ defence ” and “ protec¬ 
tion” they have specified: 1. To protect the states “against inva¬ 
sion” or external violence; 2. to protect them “against domestic 
violence.” This latter is only to be when the state legislature, or 
(if it cannot be convened) the state executive, calls for it. 

It is certain, then, that “ protection ” and preservation of the state, 
are held in view throughout the federal polity, and the history of it. 
Every act of the government must be in favor of, and not against the 
state. This all the fathers taught, and all the states intended. 

“ The Government ” has no Right to Hold the States. — The pre¬ 
tence that there is in the general government a superintending and 
constraining power over states, is false and unphilosophical, for sove¬ 
reignty “resides in,” and “never leaves,” “the people;” and hence 
the government constituted by “ the people ” must be subordinate to 
them, whether they acted as states or as a nation. The audacious 
utterance of the Philadelphia convention of 1866, that “the govern¬ 
ment ” has “ absolute supremacy ” over allegiant states, is alike false, 
unconstitutional, and treasonable. 

To make out its case, “the government” first assumes that the 
union is indissoluble; and secondly, that it has the right and duty ot 
preserving the said union; that is to say, the states by their wills 
voluntarily united themselves, and in the same act created an agency 
to keep them together despite their wills, by whipping them with 
their own men and means. Virtually “ the government ” says to “ the 
people,” whose creation and. instrument it is: “ You, as bodies, came 
freely and voluntarily together; but you shall henceforth be pinned 
together by bayonets, and shall use your minds and wills no longer, 
except ‘so far as’ ‘the supreme law’ which gives ‘the government * 
‘ absolute supremacy ’ over you, permits.” 


THE ULTIMATE ARBITER. 


361 


Any semblance of governmental control of the political people is 
unprincipled, and the exercise of such control is usurpation and 
flagrant wrong; for the American polity is founded solely on man’s 
right of, and capacity for, self-government. This necessarily implies 
self-organization and self-rule of commonwealths, and the right to 
fail in and abandon, as well as that to succeed in and continue, any 
given political or other experiment. 1 Such enforced supremacy of 
“ the government ” reduces the states to counties, nullifies their revo¬ 
lution of 1776, and remands them to colonial, or rather provincial, 
vassalage. 

1 "Washington, Franklin, and all the fathers considered and called the present federal 
system an experiment. Indeed, all human systems must be such, owing to the finite 
wisdom which makes them. This is why Massachusetts and other states declare, what 
indeed common-sense teaches: that “that the people alone have an incontestible in¬ 
alienable and indefeasible right to institute government, and to reform, alter or totally 
change the same when their protection, safety, prosperity, and happiness require it.” 


CHAPTER XII. 


THE TRUE CHARACTER OF THE GOVERNMENT. 

B Y the action of their wills, the states give existence, life, and 
power to the visible government, and at the same time, and in 
the same act, they federalize themselves. No possible political will 
could delegate or grant, but that of the state, while the only possible 
grantee is the federation of states. “ The government ” — so called 
— cannot have any capacity to be a grantee, for decisive reasons 
which will now be presented. 

“ The government of the united states,” like that of any state, is 
tripartite, i. e. three institutions, co-existing, but independently acting. 
It was not constituted a unit, so as to be a moral person, with a mind 
and a will. The “unity of government” which Washington spoke of, 
simply meant one system for all the states — without reference to its 
character — which should effectually provide for the “common de¬ 
fence ” and “ general welfare ” of “ the people ” as organized. 

To get a definite conception of the system, let us see how distinct 
and exclusive these institutions appear in the federal pact. Article I. 
declares that “ all legislative powers herein granted shall be vested in 
a congress of the united states; ” Article II. declares that “ the execu¬ 
tive power shall be vested in a president of the united states; ” and 
Article III. declares “the judicial power of the united states shall be 
vested in one supreme court ” and subordinate courts. 

Keeping these articles under view, the following diagram enables 
the mind to see the individuality of these created entities to be as 
distinct, and their action as independent, as if they were separated by 
adamantine walls, and each harnessed in steel. 


Executive 

Legislative 

Judicial 

Department. 

Department. 

Department. 









THE TRUE CHARACTER OF THE GOVERNMENT. 363 


The founders of institutional liberty, knowing the tendency of all 
government towards tyranny, recognized this natural separateness of 
these governmental functions and agencies, and in some constitutions 
expressed and carefully guarded it. [See the constitution of Massa¬ 
chusetts.] Their aim, especially in forming the federal government, 
was to subject every measure of the rulers to several successive and 
independent examinations, tests and vetoes, so as to ensure the wisest 
and most efficient, and at the same time the most conservative, efforts 
to secure “tranquillity,” “justice,” “defence,” “welfare,” and “lib¬ 
erty,” and, above all, to prevent the injury or destruction of the great 
palladium of all these blessings — the American constitutional polity. 
This is precisely the theory of those “ checks and balances ” so many 
talk of, and so few seem to understand and properly appreciate. 

The three agencies under review are the mere mouthpieces, instru¬ 
ments, tools, or slaves of their creator, owner, master, and sovereign 

— the league of commonwealths, “ the united states,” “ the people ” 

— to speak and effectuate the legislative, executive, or judicial will, as 
the case may be, of the said sovereignty. 

The Unheeded Form of Consolidation is the Worst. — Now the 
most dangerous form of consolidation in America is that which is 
least noticed and guarded against, if ever thought of, and that is the 
breaking down, by these agencies, of the walls separating them ; their 
getting together and acting covertly with one mind, under the great¬ 
est temptations, without check and without responsibility; or what 
amounts to the same, the gradual gaining by one of them of a mas¬ 
tery over the others, so as to get undivided sway. In either case 
“the government” becomes a unit, and a corporate despot of the vil¬ 
est imaginable character. If it did not, it would be superhuman. 

Reasons why it cannot be a Grantee. — The only seat of that 
“ endowment of the soul ” called “ will,” which must be used in gov¬ 
ernment, is in “the people ” as organized, and “ it never leaves them.” 
Their right of freely exercising it, is sovereignty. Not only is this 
“faculty of the soul ” resident in the people, but the government has 
no will, because it has no unity, and no corporate mind. Hence it 
cannot be a grantee of powers, rights, or anything else; but its ca¬ 
pacity is simply that of an agent, or trio of agents, who hold nothing 
of right, must do as told, and remain abjectly submissive, so that 
without resistance, or even murmur, it, or they, can be kicked out of 
the way whenever the mighty mind of the people shall move their 
mighty foot to that end. 1 

Again, “ the government ” is never mentioned as grantee, while the 

i The federal supreme court said “the constitution was written by the mighty hand 
of the people.” Why then can they not have and use a mighty foot V 


364 


SOVEREIGNTY IN THE UNITED STATES. 


association called “the united states” always is. All titles to federal 
property, and to the occupation, use and jurisdiction of federal foot¬ 
holds— as has been shown — are made by the respective states, and 
to the “ united states.” Nay, more, the tenth amendment declares 
expressly that all the powers in the constitution are “ delegated to the 
united states .” 

Again, there is no grant whatever in the sense of alienation; but 
powers are delegated, i. e. entrusted to be used for the owners, “ the 
people ’ — the users necessarily being “ agents ” and “ servants.” 
The expounding words “cede,” “surrender,” “part w T ith,” “relin¬ 
quish,” etc., that mean alienate , are quibbles, subterfuges, and falla¬ 
cies ; and they are found in the writings of every “ expounder.” 

Again, the language of the pact shows everything still to belong to 
the states. Note the numerous possessive phrases — “the govern¬ 
ment of the * states;” “the treasury of the * states;” “the army 
and navy of the * states;” “the territory and other property of 
the * states,” etc. 

Again, the government could not be the grantee, because it did not 
have a being till long after the constitution had been completed by 
the only parties that then existed, or could exert will upon it, and 
the association of states had been, ipso facto, formed. In the fall of 
1788, the congress of states declared the new federalizing instrument 
to be complete, according to its tenor, by “the ratification of the con¬ 
ventions of nine states . . . between the states so [t. e. by conven¬ 
tions] ratifying the same; ” and the said congress provided for 
carrying it into effect, by notifying their constituents, the states, of 
the “ sufficient ” “ establishment,” and recommending that they should 
elect their government. Whereupon the respective state legislatures 
passed laws for elections. In accordance therewith, the states elected 
their own subjects as senators; their own subjects as representatives; 
their own subjects as electors to elect the president. And when, in the 
spring of 1789, the elected persons, as subjects, representatives, and 
agents under the law, had organized themselves to work in the voca¬ 
tion whereunto called, the government for the first time existed; and, 
as shown, it had no unity of body or mind, no will, no inherent and 
original rights and powers, but was composed entirely of subjects 
and agents who remained individually and collectively under the law, 
whether home or general, constitutional or statutory. 

What! are these mighty “ government ” men under state constitu¬ 
tions and laws 1 Yea, verily, even under the laws of town councils, if 
applicable. Let the president, or all his government, go into Gettys¬ 
burg and violate an ordinance, and he would learn the fact. The 
wills of the states have declared the federal law to be supreme. 


THE TRUE CHARACTER OF THE GOVERNMENT. 365 


What conflicts is no law. What does not conflict is law, and binding 
even on the proudest magnate or corporation in the land, whether 
governmental or not. 

How then could this poor agency, instrument, or machine, be a 
party to the compact, and the grantee of delegations, of federal 
tenures of property, and of the use and occupation of sites for forts, 
navy-yards, etc. 1 The idea is absurd. It was the league or federa¬ 
tion that was grantee. Each state granted to the states , as is proved 
by the tenth amendment, providing that all powers not delegated to 
the united states, are reserved. And, I repeat, every grant was a 
delegation or giving in trust, and not an alienation. As Judge Parsons 
said, “ The people divest themselves of nothing .” Said Judge Marshall, 
in the ratifying convention of Virginia: “ Federal and state officers 
are alike servants of the people, who hold their powers in their own 
hands, and delegate them cautiously for short periods, to their ser¬ 
vants, who are accountable for the smallest maladministration.” [II. 
Ell. Deb. 89 ; III. Ibid. 232.] 

A Misleading Misnomer. — The phrase, “ the government ” — par¬ 
ticularly when the big G is used — misleads the unthinking, unless 
the purely derivative, delegative, and agential character of the insti¬ 
tution so named, is kept in view; for the real government of the 
republic, or of any republic, is necessarily the state itself — the so- 
called government being a mere agency or commission, created by the 
people, and empowered by them to administer their governmental 
affairs. The American bodies-politic govern themselves, — separ¬ 
ately in domestic, and unitedly in general affairs. They , then, are the 
government. Hence it is that the first article of the constitution, as 
unanimously adopted by the convention of 1787, and never reconsid¬ 
ered, though left out by the revising committee, reads as follows : 
“ Article I. The style of this government shall be the United States 
of America.” “The government,” then, is “the United States.” 
And, in the nature of things, the government of each republic is the 
republic itself, while the government of the united republics is the 
united republics themselves. 

Let us Symbolize the Polity. — The whole subject, then, in all 
its parts, being matter of fact or inference, we can present the grades 
and impartations of authority, as is done on pages 295-297 supra. 

1. Suppose thirteen or more figures in a horizontal line to symbol¬ 
ize the organizations of people named in the constitution, and those 
since admitted. Part of the people were named Massachusetts; part 
Delaware; part Georgia; and so of the rest. The original common¬ 
wealths are still so named, and are unchanged; and the new ones 
are their political equals. 


366 


SOVEREIGNTY IN THE UNITED STATES. 


2. Next below, suppose the same figures to be grouped as the 
united states, and a line to be drawn from each of the above states 
to this association, to indicate the delegating of power, by each state, 
to the union of them. Each state is the delegator, and all of them 
united are the delegatee. 

3. In the third grade, let us suppose a threefold figure to repre¬ 
sent the three co-ordinate institutions which form the federal agency 
of government, through which the individual people are ruled. This 
figure shows “ the government of [i. e. belonging to] the united states,” 
subordinate to the said states, of course. 

4. At the bottom we might place a figure to represent the same 
people that we see atop, but in their capacity as subjects, the repub¬ 
lican idea of self-government requiring that, while they appear at the 
top, and above the institutions of government, in a corporate and sove¬ 
reign capacity, they should also appear below the said institutions in 
an individual and subject one. 

This process will lastingly impress the reader with the grades of 
our system— 1. the sovereign societies of people associated ; 2. their 
governmental “ agents and depositaries of power,” as Mr. Curtis calls 
them — the congress, president, and judiciary; 3. the members, citi¬ 
zens, or subjects of the states, and their belongings. The first are the 
sovereign people, the last the subject people. 


CHAPTER XIII. 


FACTS MUST PREVAIL. 


NLESS we wish plain facts of history and the sacred records of 



our country to be subjects of contention forever, we must make 
up distinct issues, and charge either the sons or the sires with 
deliberate falsehood. 

Let those who Devised describe the Polity. — The sires who 
planned our constitution of general government described it as fol¬ 
lows. Apology for repetition can hardly be necessary : — 

Alexander Hamilton said the present union is “ an association of 
states or a confederacy;” and that “the people of New York are the 
sovereigns of it” [Fed. IX.; his address, 1789]. Chancellor Liv¬ 
ingston said our general polity is “ a league of states ” [II. Ell. Deb. 
274]. John Jay said “the states adopted ’ s “the present plan;” 
and that it is a “union of states ” [I. Ell. Deb. 496 ; II. Ibid. 282]. 
James Madison said “the states are regarded as distinct and inde¬ 
pendent sovereigns” “by the constitution” [Fed. XL.]. General 
Washington wrote of the constitution as a “ compact or treaty; ” and 
the union formed by it as “ the new confederacy ” [Let. to Gen. Pinck¬ 
ney, June 28, 1788; do. to D. Stuart, Oct. 17, 1787]. Dr. Franklin 
said the senate was to secure in the union “ the sovereignties of the 
individual states ” [V. Ell. Deb. 266]. James Wilson said the sove¬ 
reignty “ is in the people before they make a constitution, and remains 
in them after it is made,” and that the said people are “ thirteen inde¬ 
pendent sovereignties ” [II. Ell. Deb. 443; Mass. Centinel, Oct. 24, 
1787]. John Dickinson called the new political system “a confed¬ 
eracy of republics,” and he recognized therein “ the sovereignty of each 
state” [II. Pol. Writings of J. D., 107]. Gouverneur Morris said 
the constitution was “ a compact . . . between political societies, . . . 
each enjoying sovereign power” [III. Life of M., 193]. Roger Sher¬ 
man said “ the government . . . was instituted by a number of sove¬ 
reign states ” [see his Letter to John Adams in VII. Writings of J. A.]. 
Oliver Ellsworth called the states “sovereign bodies ” [II. Ell. Deb. 
197]. Tench Coxe said the union was of “separate sovereignties, 


368 


SOVEREIGNTY IN THE UNITED STATES. 


joining in a confederacy” [Am. Mus. Feb. 1788]. Chancellor Pen¬ 
dleton, the president of the Virginia ratifying convention, said the 
people of Virginia were “ the fountain of all power,” and that the new 
system was “uniting the strength of thirteen states,” each state “a 
sovereign state ” [III. Ell. Deb. 297, 549]. John Marshall (after¬ 
wards chief justice) spoke of the state in the union as “the sovereign 
power ” [III. Ell. Deb. 555], Samuel Adams said “each state retains 
its sovereignty” in the present union [II. Ell. Deb. 131]. Governor 
James Bowdoin spoke of the union as “ a confederacy; ” and of the 
states as “distinct sovereignties” [II. Ell. Deb. 129]. See also, to 
the same effect, the utterances of James Iredell [IV. Ell. Deb. 133]; 
Fisher Ames [II. Ell. Deb. 46]; Theophilus Parsons [see his Life, 
p. 98] ; Christopher Gore [II. Ell. Deb. 18]; George Cabot [II. Ell. 
Deb. 26]. 

The fathers, then, describe the American political system as a 
federation of sovereignties. 

The Sons contradict the above Statements. — The Philadelphia 
convention, in 1866, declared that the states were unified into a nation 
or commonwealth of people, were degraded to counties, and were sub¬ 
ordinated and made allegiant to “ the government,” which was pos¬ 
sessed of “absolute supremacy”; and did, with tolerable accuracy, 
express the views of Dane, Story, Webster, Curtis, Greeley, Jameson, 
Pendleton, Adams, Lincoln, Johnson, et id omne genus. The constitu¬ 
tion, said Mr. Webster, in his speech of 1833, makes us one undivided 
people, — a nation, — and “ effectually controls state sovereignty.” 
The states have only such status and rights as the national consti¬ 
tution gives them, said Mr. Lincoln. We are changed from a league 
of states to a nation of 'provinces , say they all, including Story and the 
federal supreme court. In 1876, just one hundred years after the 
states declared that they ceased to be provinces, and became sove¬ 
reigns in place of England, these “ agents and depositaries ” [“I thank 
thee,” Mr. Curtis, for these words] of “ the judicial power of the united 
[i. e. associated] states ” declare “ the government ” [of which they are a 
part] to be, “ within the scope of its powers,” [and all these “ agents 
and depositaries ” agree that, on all disputed questions of power, they 
are the ultimate arbiters], “ supreme and above the states ,” and “en¬ 
dowed with all the powers necessary for its own preservation ” ! Start¬ 
ling idea! the creature can maintain its existence against any and all 
of its creators! 

The Subject is Exclusively one of Fact. — The subjects of 
affirmation, in all these propositions, are subjects of fact and technical 
description, about which it is impossible for such men as I have named 
to speak, pro and con , innocently. They are all the most competent 


FACTS MUST PREVAIL. 


369 


witnesses the earth could afford, and all of them have made these 
questions of historical fact and testimony, special studies. They saw 
and knew what they were talking about. It is quite as justifiable for 
such men to say white is black, or night is day, as to affirm that sepa¬ 
rate states are an undivided nation, or that the league of common¬ 
wealths is a single state. There can be no escape from the charge 
that either the sons or the sires have wilfully “borne false witness.” 
It is for the American people to decide which. 

Construction or interpretation has here no place, though it is a 
common trick or subterfuge to interpret, in order to avoid plain words, 
and most lucid contemporaneous exposition. Legislative, executive, 
or judicial construction is proper, where those charged with duty find 
ambiguity or doubt in the meaning and intent of the words of their 
“ powers.” But the system was described as a fact, was recognized as 
a technical thing by all publicists, and was impressed on all men, and 
on the historic page, without reference to the acts of its government, 
and, indeed, before that institution was in esse. The system was estab¬ 
lished and describable in 1788, and was characterized by the fathers as 
above, while the government was elected, and began to exist and act, 
only in 1789. In 1788, it was a voluntary “ union of states; a volun¬ 
tary federation of sovereigns; a voluntary republic of republics.” 

The Question Americans cannot Evade. — I have now presented 
the American polity, its history, and its philosophy, and placed the 
statements of the sires in contrast with those of the sons. The as¬ 
sertions are directly opposed. Between them “ the people ” must 
decide; for, by choosing to be republics, they have assumed the right 
and the responsibility of settling all questions. Is the general polity 
a union of people, or a union of states — a nation or a confederacy h 
And is the “ absolute supremacy ” of the country in “ the govern¬ 
ment,” or is it in “ the people ” as organized 'l 

Americans will realize the wrong-doings of their “ expounders ” by 
reflecting, first, that the government in 1789 was entirely derivative, 
its authority being purely delegative and agential; second, that, in¬ 
stead of being since increased, its authority was diminished, or more 
carefully restricted, especially by the Ninth, Tenth, and Eleventh 
Amendments; third, that it now claims and enforces “absolute su¬ 
premacy” over allegiant states, and declares that these have no status 
or rights except such as are “reserved to them ” by the nation in its 
“ supreme law.” 

A Hint to England and the American Provinces. — It seems, 
from our recent history, advisable to go back to the old faith, or to 
the old sovereign. As the American states, by permitting their quon¬ 
dam federal agency or commission to fasten absolutism on them, have 

24 


370 


SOVEREIGNTY IN THE UNITED STATES. 


provincialized themselves, would it not be well, in case they do not 
wish to retake sovereignty, to propose to England a new Anglo- 
American treaty, and stipulate therein to be reincorporated, and re¬ 
stored to their ancient provincial privileges, in that glorious old 
commonwealth, whose polity, like her flag, has braved for a thousand 
years the battle and the breeze, — a polity, as her fond sons be¬ 
lieve, at once free, permanent, and unassailable, being, as Tennyson 
writes, — 

“ Broad-based upon the people’s will, 

And compassed by the inviolate sea ” ? 


PART V. 


CITIZENSHIP, ALLEGIANCE, AND TREASON IN 
THE UNITED STATES. 


















































































• . . . . 








































































































































■ 1 8 




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PART V. 


CITIZENSHIP, ALLEGIANCE, AND TREASON IN 
THE UNITED STATES. 


CHAPTER I. 

“ THE PEOPLE” ARE SOVEREIGN STATES. 

T REATING the matter in the main historically, or rather by 
quoting the statements and opinions of the fathers, I shall 
maintain the following 

Fundamental Principles. — I. The people are the states, and, as 
such, they compose whatever nation there is; and the general govern¬ 
ment is the agency of the states, by and through which they exercise 
federal self-government. 

II. The fathers contemplated, and tried to forefend, the danger of 
the federal delegative authority increasing, to the control and final 
destruction of the states. 

III. Federal acts, outside of delegated powers, were to be treated 
as nullities, and, if attempted to be enforced, resisted as usurpa¬ 
tions. 

IV. The federal government is not only without authority, but is 
actually prohibited, to coerce the state with arms, by legislation, or 
even judicially. 

V. The states in the union have the unlimited right of self-defence, 
even, if need be, against the federal agency. 

VI. To defend the state with arms, in obedience to her will, is the 
duty of the member or citizen, and is not treason in any sense, but 
is true loyalty. 

The reader will find the corollaries or considerations, involved in 
this last and most important point, stated at the beginning of Chapter 
VI., infra; and he should by all means read them now, for thereby 
he can see, and measurably appreciate, the scope, if not the pith, of 
the whole great argument. The last point (VI.) is the citadel of 
American institutional liberty! 



374 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


The States are the People and Polity. 

Point I. — The people are the states, and, as such, they com¬ 
pose whatever nation there is ; and the general government is 
the agency of the states, by and through which they exercise 
federal self-government. 

The people are states, and are sovereign, for they are republics, or 
self-governing bodies of people. They were never organized otherwise. 
Nor have they any capacity for political action, except as states; and 
it is they (and not their government, local or general), that hold, 
inherently and db origine , the sovereign, exclusive, and unqualified right 
and power to govern all the people and territory within them. Just 
as they pre-existed, they were named and provided for in the federal 
constitution, as well as recognized as the sole parties to and actors 
under it; and the identical, original states now exist, unchanged in 
any particular. 

And the general government is their agency, for it is made up per¬ 
sonally of their subjects, and it only possesses and acts by derivative 
and delegative power. 

All the foregoing parts of this work are devoted to the proof of the 
above proposition, so that I shall content myself here with two or 
three decisive quotations, fully covering the ground, simply to indi¬ 
cate this link of the chain, while emphasizing and reimpressing the 
vital truth it involves. 

Said Daniel Webster, in his speech of 1833: “The sovereignty 
of government is an idea belonging to the other side of the Atlantic. 
No such thing is known in North America. . . . But with us, all 
power is with the people. They alone are sovereign, and they erect 
what governments they please, and confer on them such power as they 
please.” 

George Ticknor Curtis states it as “ the American doctrine ” that 
all supreme power resides originally in the people, and that all gov¬ 
ernments are constituted by them as the agents and depositaries of 
that power. 1 

To the same effect, I quote from among numerous authorities 
before me, James Wilson’s statement in the Pennsylvania ratifying 
convention : “ The supreme, absolute, and uncontrollable power is in 
the people, before they make a constitution, and remains in them 

1 “ Agents ” do not act, or “ depositaries ” hold, for themselves. Hence, Mr. Curtis 
is solecistic in saying, as he does or seems to do, that they are the depositaries of sove¬ 
reign authority, instead of “powers” delegated by the*said authority. I accept his 
truth as an admission, and reject his mistake. 


THE PEOPLE ” ARE SOVEREIGN STATES. 


375 


after it is made. . . . The sovereignty resides in the people, and it 
never leaves them.” [II. Ell. Deb. 432, et seq .] 

He meant the people as organized in societies or commonwealths, 
and not as a nation, for he spoke of “thirteen independent sovereign¬ 
ties ” as the parties then deliberating and acting. [Mass. Centinel, 
Oct. 24, 1787 ; Am. Mus., Vol. I.] 

I conclude this point by referring to the numerous quotations made 
heretofore from Hamilton, Madison, Washington, Franklin, Adams, 
and the rest of the fathers, especially in Chapter VII. of Part I., and 
by repeating that the people are the states, and, as such, they 
compose whatever nation there is ; and the “ general government ” 
is the agency of the states, by and through which they exercise 
federal self-government. Q. E. D. 


CHAPTEE II. 


FEDERAL USURPATION TO BE FEARED AND OPPOSED. 

P OINT II. —The fathers contemplated, and tried to forefend, 
the danger of the federal delegative authority increasing, to 
the control and final destruction of the states. 

The use of undelegated power by the federal government, or the 
individuals thereof, involves their perjury and treason, for they are 
all sworn to support and obey the constitution, — such oath being, in 
effect, to use granted, and not use ungranted, powers, — the latter 
being “retained,” or “reserved,” by the sovereigns as their most 
precious treasures. And it was never dreamed of that federal officers 
— the elect of the people, and “the excellent of the earth” — could 
ever become such villains as to perjure themselves, and thus deprive 
the people of the great security against usurpation referred to by 
Webster when he said : “ The constitution , to 'preserve itself \ lays hold 
of individual conscience and individual duty.” The tendency and end 
of such federal increment is necessarily to degrade, and finally to over¬ 
throw and destroy, the sovereigns of the country. Unfortunately, 
encroachments on reserved powers in a republic are insidious and 
unappreciated, until their sum amounts to revolution and the loss of 
liberty! 

When the federalizing of the states was under discussion, the great 
fear was that the general government might transcend its granted 
powers, to nationalize or consolidate them. The vehement attacks of 
Henry, Mason, Martin, Lowndes, Yates, and others, were nearly 
fatal. Every advocate of the new plan insisted on federalizing the 
states, and disavowed and denounced the idea of consolidating or 
nationalizing them. For example, the great Fisher Ames said, in the 
Massachusetts ratifying convention : “No argument against the new 
plan has made a deeper impression than this, that it will produce a 
consolidation of the states. This is an effect which all good men depre¬ 
cate. . . . The state governments are essential parts of the system. 

. . . The senators represent the sovereignty of the states ... in tho. 
quality of ambassadors of states. ... A consolidation of the states. 


FEDERAL USURPATION TO BE FEARED AND OPPOSED. 377 


would subvert the new constitution , against which this very article [that 
providing for senators to serve six years] is our best security. Too 
much provision cannot be made against consolidation.” Said Chan¬ 
cellor Pendleton, in the convention of Virginia, in reference to this 
very objection : “ If this be such a government, I will confess with my 
worthy friend [Patrick Henry] that it is inadmissible.” Similarly 
spoke others, in all the principal ratifying and delegating states; and 
no friend of the constitution ever dissented. The advocates of the 
plan, admitting that the federal functionaries were to be (not angels 
— but) men of average weakness and wickedness, showed the danger 
to be much overrated, and strove to ascertain it precisely, and fore- 
fend it. They argued, as will be hereafter seen, that there was no 
power whatever to coerce states in any manner; that the states had 
the right of self-defence, even against the federal government; that 
they only delegated power, or bound themselves in union, voluntarily , 
and could withdraw, or retract delegations at will; and, in short, 
that state integrity and sovereignty were secure. 

Carefully Guarding against Consolidation. — Hay, more, out of 
abundance of caution, the advocates, to prevent possible dangers, or, 
at all events, to remove doubts, proposed amendments. This over¬ 
caution was started in the Massachusetts convention, where, after 
long and animated debate, it was found that the opposition was likely 
to prevail. Thereupon a “conciliatory proposition” was made by the 
federalizers, through John Hancock, the president, to the effect that 
the convention should ratify, with the understanding that the states 
should speedily make amendments. Chief among those proposed was 
the following : That “ all powers not expressly delegated, are reserved 
to the several states, to be by them exercised.” But even then, 
though Samuel Adams, the great leader of the opposition, joined 
Hancock, and both expressed “full confidence” in the amendments 
being adopted, such were the fear and prejudice, that ratification was 
only carried by a majority of 19 in 355 votes. [II. Ell. Deb. 181.] 
And, indeed, so deep and widespread were the apprehension and doubt 
on this subject, that in several of the states the constitution was 
barely carried. And Hildreth, the Massachusetts historian, thinks, 
on a retrospect, that if a vote of the general people had been taken, 
the decision would have been adverse. 

This amendment was a mere truism, and was to give emphasis to 
what already existed in the nature of things; for actual delegations 
only were put in the plan; and the powers not put in were kept out, 
and, of course, retained by the commonwealths of people. Hence the 
amendment was needed only to enable the said people “clearly to see 
the distinction,” remove their fears, and give confidence and hope. 


378 CITIZENSHIP, ALLEGIANCE, AND TREASON. 

This is evident from the debate and the ordinance of ratification [see 
II. Ell. Deb. 122-177, et seqi]) and Samuel Adams wrote Elbridge 
Gerry and R. H. Lee, in congress, in 1789, pressing on the latter, 
“ the importance of the amendments, that the good people may clearly 
see the distinction between the federal powers vested in congress, and 
the sovereign authority belonging to the several states, which is the 
palladium of the private and personal rights of the citizensand 
urging to the former, that “without such distinction, there will be 
danger of the constitution issuing imperceptibly and gradually into a 
consolidated government, over all the states, which, though it may be 
wished for by some, was reprobated in the idea by the highest advo¬ 
cates of the constitution as it stood without amendment.” [See III. 
Life of Samuel Adams.] Numerous evidences of this view could be 
given. One will suffice. Said General C. C. Pinckney, in the debate 
on ratification in South Carolina : No powers can be “in the general 
government but what are expressly granted to it. By delegating 
express powers, we certainly reserve to ourselves every power and 
right not mentioned in the constitution.” 

Successively, South Carolina, New Hampshire, Virginia, and New 
York joined Massachusetts in her demand for this great amendment. 
And it is more than probable that the general approval of it, and the 
“full confidence” in its being adopted, caused the acquiescence in, 
and the adoption of, the new system. 

In the congress of 1789, resolutions proposing the amendments for 
the action of the states were passed, — the preamble setting forth 
that some of the states expressed, when they adopted the constitu¬ 
tion, “a desire, in order to prevent misconstruction, or abuse of its 
powers, that further declaratory and restrictive clauses should be 
added; ” and that “ such clauses would tend to increase public confi¬ 
dence, and thereby help to the beneficent ends in view.” 

The Grand Result of the Movement may be stated thus: The 
charge that consolidation, or subordinating the states, was in the 
original instrument, was disproved. To make assurance doubly sure, 
that the government was to be always an agency of, and subordinate 
to, the states; to complete the harnessing and utilizing of the indi¬ 
vidual and collective personnel of the government; to emphasize their 
subjection to the law, and their inability to act without express and 
written warrant; and finally, to make coercion of the states, by their 
own subjects and agency, forever impossible, they — the said states — 
amended the constitution within the first few years of its history, as 
follows —;- thus putting the people’s seal of reprobation on, and forever 
preventing, all legislative, military, and judicial forms of coercion of 
commonwealths : — Amendment IX. provides, that the enumeration in 


FEDERAL USURPATION TO BE FEARED AND OPPOSED. 379 


the constitution of certain rights, shall not be construed to deny or 
disparage others retained by the people; Amendment X., that the 
powers not delegated to the united states, or prohibited therein to the 
states, are reserved to the states or people; 1 and Amendment XI., 
that there shall be no federal judicial coercion of a state at the suit of 
a citizen of any other state. [Please refer to Amendments IX., X., 
and XI.] 

It is obvious that Amendment X. alone, in declaring that “ all pow¬ 
ers not delegated to the united states, are reserved,” etc., shows that 
the several states that delegated must be now absolutely sovereign; 
that they collectively are the sole recipients and trustees of the 
powers delegated by the individual states; and finally, that the whole 
grand federal polity rests solely on sacred international faith — the 
highest political sanction that is earthly and human; as well as the 
most likely to endure — if men have the right and capacity for self¬ 
organization and self-government. 

In closing this point, then, I beg leave to repeat, that the fathers 
contemplated, and tried to forefend, the danger of the federal del- 
egative authority increasing, to the control and final destruction 
of the states. Q. E. D. 

1 An important part of the perverting interpretation I am exposing, is that which 
takes hold of the constitution with its profane hands, right at this point, and says that 
the powers not delegated are reserved to the nation — as if the thirteen organizations of 
people could severally ratify and delegate (as all the sacred records unequivocally say 
they did) and then and there, a nation of people, comprising the said “thirteen,” could 
“ retain ” and “ reserve ” those powers of the said states which they, the said states, 
did not delegate. Of course this is intended as a deception, or it is a gross mistake. 
Referring to Appendix E for the original forms of the 10th Amendment, to show 
what the meaning and intent of the people was; what they supposed they were declar¬ 
ing; and what common sense teaches they did declare; I will state, as the result of my 
investigation and thought, that the conclusion of the said amendment, means as if it 
read — reserved to the state governments respectively , or to the people of the states , who 
delegate the powers which are not reserved. See the proposition of Massachusetts, on 
which all the subsequently ratifying states acted, a few paragraphs above. 




CHAPTER III. 

USURPATIONS TO BE TREATED AS NULLITIES. 

OINT III. —Federal acts, outside of delegated powers, were 



JT to be treated as nullities, and — if attempted to be enforced 
— resisted as usurpations. 

. Said Hamilton : “ The laws of congress are restricted to a certain 
sphere, and when they depart from this sphere, they are no longer 
supreme or binding.” [II. Ell. Deb. 362.] 

Said Judge Parsons, “the celebrated chief justice,” as Judge Story 
calls him : “ An increase of power by usurpation is clearly a violation 
of the federal constitution.” Again he said: “An act of usurpation 
is not obligatory; it is not law.” And furthermore he said : the oath 
to support the constitution “ obliges the officers of the several states ” 
to oppose all such acts. And this great jurist and statesman contem¬ 
plated opposition by arms, if necessary. [Ibid. 94.] 

Said Judge Iredell, afterwards supreme judge of the united 
states: “ If congress, under pretence of executing one power, usurp 
another, they will violate the constitution; ” and he further asserted 
that “a law of congress, not consistent with the constitution,” would 
“not be binding on the people.” [IV. Ibid. 179.] 

Massachusetts, as usual, caps the climax — she and Connecticut 
and Rhode Island having, in 1814 — as sovereigns — declared that 
“ acts of congress , in violation of the constitution , are absolutely void ! ” 
From this doctrine there was no dissent among the fathers and the 
states, so that further quotations are not needed, though many pages 
might be given. Like any other agent, the moment it gets outside 
of its procuration on reserved ground, the federal government becomes 
a wrong-doer and trespasser. And, furthermore, it — being under 
oath — becomes perjured and deeply criminal. Hence, if there be no 
law for its restraint, it must be repelled vi et armis. And, indeed, 
Judge Parsons spoke of the resistance to be offered by the states as 
war! [II. Ell. Deb. 94.] 

It is well to observe that in self-government, every citizen, official 
or private, has legal and political, as well as moral, duties, which he 



USURPATIONS TO BE TREATED AS NULLITIES. 381 

must personally perform. His judgment and his conscience must 
decide each and every case presented for his action. His responsi- 
bility is individual here, just as much as it is in the hereafter. Pres¬ 
ident Jefferson was right in his letter to the district attorney of 
New York, dated November 1, 1801, where he said: “/ shall treat 
the sedition law as a nullity, wherever it comes in the way of my 
functions; and President Jackson was right in saying, he had 
sworn to obey the constitution as he understood it, and that where a 
sworn or other duty was to be done, his judgment and conscience 
were to be his guide — precedents only influencing his mind according 
to their character, weight, and applicability. 

And this was President Johnson’s position, as discussed in his 
impeachment, that every official, and every citizen, has the right to 
refuse to obey any and every law, subject only to the danger of judg¬ 
ment and costs being given against him. And when a constitutional 
question is involved, it sometimes becomes a sacred duty to resist 
with lawful means, and — in extreme cases — by violence, especially 
in these times, when fraud and force are vitally attacking our most 
cherished institutions. 

With peculiar cogency, Webster’s words close the argument: “ the 
constitution, to preserve itself,” “lays its hand on individual con¬ 
science and individual duty.” And the lofty phrase of the hero Jack- 
son sounds in unison : “ I swore to obey and protect the constitution 
as I [and not as others] understand it! ” 

The responsibility for the God-given right of self-government being 
used correctly, is in individuals, and they must resist, either person¬ 
ally or collectively, as need may be. In government, they only act 
in the latter capacity; but they have all power, and theirs is the 
ultima ratio . This same conscience, and the same instinct of self- 
preservation, must be the prompters and guides, in either personal or 
social action. 

I conclude, then, that federal acts outside of delegated powers 
were to be treated as nullities, and —if attempted to be enforced 
— resisted as usurpations. Q. E. D. 



CHAPTER IV. 


NO FEDERAL COERCION OF STATES. 

P OINT IV. — The federal government is not only without au¬ 
thority, but is actually prohibited, to coerce the state with 
arms, by legislation, or even judicially. 

The states possess sovereignty, that is, untrammelled will over 
their interest and destiny; and the union is not a hundred-armed 
Briareus, irresistibly grasping and holding the states together; for if 
it were, the states would not be free. Where the hand of power con¬ 
strains a man or state to do or not to do, to stay or not to stay, free¬ 
dom pro tanto is gone, and all of liberty will most certainly follow. 

When the federal convention, desiring to make a sufficiently strong, 
and a self-sustaining government, was considering the kind of coercion 
necessary to enforce its powers, some of the members thoughtlessly 
suggested the idea of coercion against states. This was before the 
plan was adopted, of giving the federal government precisely the 
mode and means of exercising and enforcing jurisdiction on the indi¬ 
vidual citizens of states, that was already, and was to be, exercised by 
the state governments — that is, courts, sheriffs, and, if necessary, 
the posse comitatus, etc., it being considered by all, that the federal, 
like the state government, was a part of the people’s agency of self- 
government. 

When the original constitution, as completed by the convention of 
1787, was ordained and established “between the states so \i.e. by 
conventions] ratifying the same,” it was the uniyersal understanding 
of the fathers, that the states were in no wise subject to it. “ This 
constitution does not coerce sovereign bodies — states,” said Ells¬ 
worth, and all agreed with him. They knew the said states “ dele¬ 
gated” the only powers put in the instrument, and “reserved” and 
“ retained ” all others out of it; and it could not be supposed that 
their own powers, their own members and subjects, and their own 
means, could be used to constrain and subjugate their own wills — 
the sovereign wills that delegated the powers. 


NO FEDERAL COERCION OF STATES. 


383 


What say the Fathers on Federal Coercion ? — Now let us see 

what the leading fathers said on the subject, to induce the people to 
ratify the compact. 

The idea of Noah Webster and others, of the states giving a federal 
coercion over their citizens, like that which their respective home 
governments exercised, had been adopted in the convention — the 
alternative being coercion of states as bodies. Hence the following 
expressions of the fathers : — 

Mr. Madison (whom I have quoted supra , as saying, with the con¬ 
currence of everybody of note, that the constitution was made by 
“the people as composing thirteen sovereignties,” and that “the 
states are regarded as distinct and independent sovereigns ... by 
the constitution proposed ”), declared, in reference to the proposed 
coercion : “ An attempt to coerce states would be a dissolution of all 
previous compacts. A union of states, containing such an ingredient, 
seems to provide for its own destruction.” Again : “ Any government 
formed on the supposed practicability of using force against the un¬ 
constitutional proceedings of states, would prove visionary and falla¬ 
cious.” [Fed. 15, 16, 20; V. Ell. Deb. 171; III. Ibid, passim.] 

Hamilton, the advocate par excellence of a strong government, re¬ 
peatedly expressed himself against such an idea. Said he: “To 
coerce states is one of the maddest projects ever devised. . . . Here 
is a nation at war against itself. Can any reasonable man be well 
disposed towards a government which makes war and carnage the 
only means of supporting itself — a government that can exist only 
by the sword ? This single consideration should be sufficient to dis¬ 
pose every peaceable citizen against such a government. . . . What, 
sir, is the cure for this great evil 1 Nothing, but to enable the national 
laius to operate on individuals in the same manner as those of states do” 
[II. Ibid. 233.] 

Edmund Randolph, governor of Virginia, and attorney-general of 
the administration of Washington, uttered the following in the Vir¬ 
ginia convention : “ But although coercion is an indispensable ingre¬ 
dient, it ought not to be directed against a state as a state, it being 
impossible to attempt it, except by blockading the trade of the delin¬ 
quent, or carrying war into its bowels . . . and [this] might drive 
the proscribed state into the desperate resolve of inviting foreign 
alliances. . . . But how shall we speak of the intrusion of troops? 
Shall we arm citizens against citizens, and habituate them to shed 
kindred blood? Shall we risk the inflicting of wounds which will 
generate a rancor never to be subdued ? Would there be no room to 
fear that an army accustomed to fight for the establishment of author¬ 
ity, would salute an emperor of their own ? Let us not bring these 


384 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


things into jeopardy. Let us rather substitute the same process by 
which individuals are compelled to contribute to the government of their 
own states .” [I. Ibid. 385; III. 117.] 

Said Oliver Ellsworth, afterwards chief justice, appointed by 
Washington : “ Small states must possess the power of self-defence, or 
be ruined.” Speaking further of possible antagonisms between the 
states and the federal government, and the power vested in the latter 
to enforce its laws, he said : “ This constitution does not attempt to 
coerce sovereign bodies, states in their political capacities. No coer¬ 
cion is applicable to such bodies but that of an armed force. . . . But 
legal coercion singles out the guilty individual, and punishes him for 
breaking the laws of the union” [II. Ibid. 197.] 

William R Davie, one of the leading statesmen of North Carolina, 
and a member of both federal and state conventions, said, in the lat¬ 
ter : “I know of but two ways in which the laws can be executed by 
any government. The first mode is coercion'by military force, and 
the second is coercion through the judiciary” He concludes : “ I sup¬ 
pose no man will support the former, and the power of the latter is 
co-extensive with the legislative.” [IV. Ibid. 155; also 21.] 

Said Judge Spencer, in the same convention: “ The laws of the gen¬ 
eral government must operate on individuals ... as laws could not be 
put in execution against states without the agency of the sword, which 
instead of answering the ends of government, would destroy it.” [IV. 
Ibid. 163.] 

Said Rufus King, in the convention of Massachusetts : u Laws to be 
effective, must not be laid on states, but on individuals.” He further 
said he knew of “ no method to compel delinquent states.” [II. Ibid. 
55-6.] 

Other authorities might be quoted, but there was no word of dis¬ 
sent anywhere, and these extracts show the views of all. There was 
to be no coercion of the political will of states — no matter what .that 
will might decide — such coercion being inconsistent with the agreed 
plan of a voluntary federation, founded solely on amity, mutual inter¬ 
est, and the hope of effecting safety by union. Not only was no 
power of constraint or restraint given, but all the powers are delegated 
professedly to “provide for” 11 defence,” and not for attack , of “the 
[communities of] people.” 

It is as true now, as it was when Madison, Hamilton, Ellsworth, 
Randolph, King, and others, asserted it as above, that any attempt 
to coerce a state is war. Nay, more, as it involves the use of force 
by the creature against the creator; by the citizen against the state of 
which he is a member; and by the subject against the sovereign, coercion 
of the state, by the government, must be treasonable in its nature. 


NO FEDERAL COERCION OF STATES. 


385 


The great Aim of the Fathers was to avoid Coercing the 
States. — It is evident then, that the commonwealths, while deter¬ 
mined to continue their federalized condition, aimed to change their 
federal agency to one empowered by them to operate on, and coerce 
their individual citizens, just as their respective domestic govern¬ 
ments did. This is the very point of all the above expressions; and 
number 20 of the Federalist — the joint production of Hamilton and 
Madison — should be added to them, as remarkable and crowning 
proof: “ A sovereignty over sovereigns, a government over govern¬ 
ments, a legislation for. communities as contradistinguished from indi¬ 
viduals, as it is a solecism in theory, so in practice it is subversive of 
the order and ends of civil polity, by substituting violence in place of 
law , or the destructive coercion of the sword, in the place of the mild 
and salutary coercion of the magistracy.” This, with the following 
from number 15 [Ibid.], written by Hamilton, should end controversy : 
“ The great and radicalsvice in the construction of the existing confed¬ 
eration, is in the principle of legislation for states or governments, in 
their corporative or collective capacities, and as contradistinguished 
from the individuals of whom they consist By reading this and the 
16th number of the Federalist, it will be seen that the great aim was 
to do away with the great “ vice.” 

Concisely, this was the fathers’ view: the federal institution now pro¬ 
posed does not coerce the states, for they are sovereign; and the said 
agency, with their authority, coerces their subjects. The great fear, 
at that time, was, that if this change was not made, so that the fed¬ 
eral government would be able to execute its powers, the federation 
might be tempted or provoked, some time, to coerce a delinquent 
state. Even Mr. Jefferson had, before 1787, said, in substance, We 
will not get all the states promptly to comply with federal requisi¬ 
tions, till the confederacy shows her teeth, and sends frigates to their 
ports with shotted guns. 

Hence we see that the great change aimed at, was not “ a change 
from a federation to another system,” as Mr. Webster and the federal 
supreme court assert; but the federation and the federal agency were 
continued, and the change consisted in making the latter much more 
efficient, by adding executive and judicial, to legislative powers, and 
enabling it to operate directly and coercively on the citizens of all the 
states. And hence we also see how fallacious another of Mr. Web¬ 
ster’s assertions is, to wit, that “ so far as the constitution goes, so 
far state sovereignty is effectually [^. e. with right of coercion] con¬ 
trolled.” 

Even Judicial Coercion of States not intended. — Not only was 
legislative coercion, and that vi et armis, prohibited and guarded 

25 


386 


CITIZENSHIP, ALLEGIANCE, AND TREASON 


against, but even judicial coercion was intended to be excluded from 
the constitution; and as to the latter, the compact was amended, as 
we have seen, to make assurance doubly sure. 

Judge Marshall, speaking on the subject, in the Virginia ratify¬ 
ing convention, thought that even under the original provision, “ a 
state would not be called at the bar of the federal court; ” for, said 
he, “ it is not rational to suppose that the sovereign power should be 
dragged before a court;” but he suggested amendment, to remove 
any possible doubt. [III. Ell. Deb. 555.] 

George Mason said, in the same convention: “Is this state to be 
brought to the bar of justice, like a delinquent individuals Is the 
sovereignty of the state to be arraigned like a culprit or private 
offenders . . . What is to be done if a judgment be obtained against 
a state S Will you issue a fieri facias ? It would be ludicrous to say 
you could put the state’s body in jail. How is the judgment then to 
be enforced S A power which cannot be executed, ought not to be 
granted.” [Ibid. 527.] 

It was to Mason and Henry that Marshall replied as above. Madi¬ 
son joined him as follows : “ It is not in the power of individuals to 
call any state into court.” He further said that if the clause “ be 
found improper, it will be amended.” [Ibid. 533.] 

Not only was no such power given, but no means were provided 
for the execution of such power. And, as George Mason more than 
intimated, a law without a sanction, or a power unaccompanied by 
any provision for its enforcement, is practically little better than a 
nonentity, and surely cannot be implied. 

It should be here explained, that, as to the jurisdiction of those 
differences between the states, which could assume the form of suits, 
the said states agreed, in the constitution, to submit them to the 
umpire — i. e. the supreme court — they created; and their good 
faith was pledged to abide by and effectuate the judgments. 

The federal judiciary, of which the supreme court is a part, is 
entirely the creation of the states, springing from, and existing by, 
their will; and it is precisely as if so many monarchs had appointed 
a commission of wise subjects, to decide disputes between them by 
reason, law, and justice. 

Massachusetts again in the Lead. — The Old Bay State again 
shone resplendent as the champion of state sovereignty, before this 
matter of preventing judicial coercion was finally settled. As suits 
were commenced against states in the federal courts, looking to judi¬ 
cial coercion, an agitation was begun by her, notably led by Governor 
James Sullivan; and it spread and prospered, till the Amendment XI. 
was adopted. In the case of Chisholm vs. Georgia, in 1793, the fed- 


NO FEDERAL COERCION OF STATES. 


387 


eral supreme court decided such suits to be constitutional; and Mas¬ 
sachusetts was cited to appear in a federal court by William Vassall, a 
refugee loyalist, suing for his confiscated estates. 

Thereupon, Governor John Hancock convened the legislature, which 
referred to the above decision, and — “ Resolved, that a power claimed, 
or which may be claimed, of compelling a state to be made defendant 
in any court of the united states, at the suit of an individual or 
individuals, is, in the opinion of this legislature, unnecessary and 
inexpedient, and, in its exercise, dangerous to the peace, safety, and 
independence of the several states,*and repugnant to the first princi¬ 
ples of a federal government.” And she instructs her delegation in 
congress to proceed at once to obtain amendments, to “remove any 
clause or article of the said constitution, which may be construed to 
imply a decision, that a state is compelled to answer, in any suit, by 
an individual or individuals, in any court of the united states.” 

The Grand Result Massachusetts led to. — The result of the 
great movement, led by Massachusetts, was that the sovereigns or¬ 
dained the 11th Amendment, providing that the federal “judicial 
power” “shall not be construed to extend to any suit, in law or 
equity, commenced or prosecuted against one of the united states, by 
citizens of another state, or by citizens or subjects of any foreign 
state.” 

Gouverneur Morris afterwards said, that while the most of the 
amendments were mere verbiage, “ the one that a state should not be 
made amenable to justice, through the courts, was, perhaps, proper; ” 
as it was hardly “ rational policy,” “ to bring a state into a court of 
justice,” “ for it would not be easy to coerce a corporation such as 
New York.” [Letter to R. Walsh, Feb. 5, 1811.] 

If there was no power of coercion, there was, of course, perfect free 
will of states. 

Perjured Usurpation and Treason. — It seems certain, from the 
foregoing authorities, 1st. That the right to coerce states is not in, 
but is prohibited by, the sacred compact; 2d. That the exercise of 
such power must be perjured usurpation; 3d. That as far as the 
federal functionaries who coerce, are members and subjects of the 
states coerced, they commit treason; and those of the other states 
who aid them, commit a federal crime — so to speak — but little less 
atrocious. 

I repeat, then, that the federal government is not only without 
authority, but is actually prohibited, to coerce the state with 
arms, by legislation, or even judicially. Q. E. D. 


CHAPTER V. 


SELF-DEFENCE OF STATES. 

• 

P OINT Y. — The fathers considered that the states in the union 
have the unlimited right of self-defence, by withdrawing 
delegations, and recalling their citizens from federal offices ; by 
dissociation; and by fighting, if need be, the federal govern¬ 
ment. 

The highest and most conspicuous authority — that which is most 
conclusive on the right to any mode of defence a state may choose, 
against the aggressions or menaces of power, and against federal coer¬ 
cion — is the states themselves. Not only did they solemnly compact, 
and pledge faith and guaranty with one another, that each state was 
“ sovereign, free, and independent,” at the very moment they, as thus 
characterized, made the federal constitution; but they, the said states, 
did then have — and they have ever since had — in their respective 
constitutions the solemn declaration that “ all political power is in¬ 
herent ” in them. Not a part, and not in any qualified manner, but 
all — absolutely all. [See the state constitutions generally.] 

Surely, surely, if “all political power” is inherent in these com¬ 
munities, they could take the political step of separating or withdraw¬ 
ing their delegations of power from the federal government; and 
there could be no political authority out of them, to coerce them 
against their will, especially as they have made no expression to that 
effect. It is quite obvious, that if there was any political power out 
of them that they could not recall at will, they were neither sove¬ 
reigns nor free states. Passing by this, let us see 

What the Fathers say on Self-defence of States. — Said Dr. 
Johnson, one of the most eminent lawyers and statesmen of Con¬ 
necticut, in the federal convention : “If states as such are to exist, 
they ought to have the means of defending themselves.” [Y. Ell. 
Deb. 255.] 

Said Oliver Ellsworth — afterwards the chief justice of the 
united states — in the same convention : “ The power of self-defence 
is essential to the small states. Nature has given it to the smallest 
insect of the creation.” [Ibid. 260.] 


SELF-DEFENCE OF STATES. 


389 


Said John Marshall — afterwards the celebrated chief justice of 
the united states — in the Virginia convention: “ We \i. e. the people of 
Virginia] are threatened with the loss of our liberties by the possible 
abuse of power, notwithstanding the maxim that those who give mag 
take away. It is the people that give power , and can take it back. 
What shall restrain them 1 They are the masters who gave it, and of 
whom the servants hold it. . . . The government is not supported by 
force, -but depending on our free-will. When experience shall show 
us any inconvenience, we can then correct it.” [III. Ibid. 233.] 

Said Chancellor Pendleton, the president of said convention, on 
the same occasion : “ Where is the cause of alarm 1 We, the people 
[of Virginia], possessing all power, form a government, which we 
think will secure happiness. And suppose, in adopting this plan, 
we should be mistaken in the end. ... In the same plan we point 
out an easy and quiet method of reforming what may be found amiss. 
But, say gentlemen, we have put the introduction of that method in 
the hands of our servants, who will interrupt it from motives of self- 
interest. What then 1 We will assemble in convention [of Virginia, of 
course], wholly recall our delegated powers, or reform them, so 
as to prevent such abuse, and punish those servants who have per¬ 
verted powers, designed for our happiness, to their own emolument.” 
[Ibid. 37.] 

Mr. Madison expressed the same views. So did George Nicholas 
and others. No one opposed them. And what is most decisive is, 
that, through this convention, the people of Virginia did, as a sovereign 
commonwealth, accompany the ratification with this solemn protest: 
“ that the powers granted under the constitution, being derived from 
the people of the united states [will] be resumed by them, whensoever 
the same shall be perverted to their injury or oppression.” [Ibid. 
656.] 

Of right, she could only speak for herself in this matter, which she 
did, by uttering a general principle. As the delegated power came, 
by the ordinance of ratification, from each state, the withdrawal must 
be by each, and this is the only possible meaning of “resumed,” or 
“reassumed,” as New York expressed it; and it would be by virtue 
of an authority superior to the thing made — an authority above 
any constitution or government — the jus summa imperii. There can 
be no “constitutional right to secede.” Such right must be inherent, 
characteristic, and inalienable, as well as above the constitution. In 
those days nobody denied the right. It was an essential attribute of 
state sovereignty, which was supposed to be unquestionable. But let 
us pass on. 

James Iredell, afterwards of the supreme court of the union, in the 


390 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


convention of North Carolina, after saying that the senate was 
required “to preserve completely the sovereignty of the states,” said : 
“ Those in power are their [the people’s] servants and agents, and the 
people, without their consent, may new-model their government, when 
they think proper. . . . Let them [the people] be w 7 atchful over their 
rulers. . . . Should their liberties be in danger . . . they have, thank 
God, an ultimate remedy. That power which created the govern¬ 
ment can destroy it. . . . If the government want amendments, 
they can be made in the mode prescribed in it.” [IY. Ibid. 9, 130.J 

Here is the right of secession again — brought forward too as an 
argument in favor of adoption. No one questioned it! 

Roger Sherman, one of the great statesmen of Connecticut, wrote 
to John Adams, July 20, 1789, as follows: “I fully agree with you, 
sir, that it is optional with the people of a state, to establish any form 
of government they please — to vest the powers in one, a few, or 
many — and for a limited or unlimited time; and the individuals 
of the state will be bound to yield obedience to such government 
while it continues ; but I am also of opinion that they may alter 
their frame of government when they please, any former act of 
theirs, however explicit, to the contrary notwithstanding.” 

John Dickinson, after recognizing the commonwealths of people as 
the several and sovereign authorities constituting the new system, and 
intending to act under it, puts hypothetically the case of “bad 
administration,” and asks : “ What is then to be done 1 The answer,” 
he continues, “is instantly found ; let the fasces be lowered before the 
supreme sovereignty of the people. It is their duty to watch, and their 
right to take care, that the constitution be preserved : or, in the 
Roman phrase, on perilous occasions, to provide that the republic re¬ 
ceives no damage.” [See II. Pol. Writings John Dickinson.] 

Do the above authorities favor the idea that the commonwealth 
was, by its own compact, tied helplessly under governmental sove¬ 
reignty 1 

And even James Wilson, the leading statesman of Pennsylvania, — 
afterwards one of the federal supreme jndges, — advances the same 
idea, as was unavoidable from the nature of things. He asserted that 
the absolute sovereignty never « goes from the people,” but “ remains 
in them after a constitution is made”; that making constitutions 
is “dispensing such portions of power” as “the public welfare” re¬ 
quires; that ratifying the federal constitution was “delegating federal 
powers”; and that the general government is “a federal body of our 
own creation.” And, said he : The constitution “ receives its politi¬ 
cal existence from their [the people’s] authority; they ordain and 
establish. What is the necessary consequence 1 Those who ordain 


SELF-DEFENCE OF STATES. 


391 


and establish have the power, if they think proper, to repeal and 
annul.” [II. Ell. Deb. 435.] 

This of itself, taken in connection with the fact that Pennsylvania 
was then “ sovereign and independent,” and as such was then in 
convention determining her will for or against delegating or dispens¬ 
ing portions of her power to a federal government, ought to convince 
any one that the sovereignty of the states, and the necessary right 
of secession, were taken for granted, and were intended to be pre¬ 
served. 

Let us now introduce, as testimony on this all-important point of 
the right of self-defence in states, 

The ancient faith of Massachusetts, as set forth by her chosen 
sons in her great ratifying convention. Such views as the above met 
therein no dissent whatever. 

Rev. Samuel Stillman said : “ After all, if this constitution were 
as perfect as the sacred volume is, it would not secure the liberties of 
the people, unless they watched their own liberties. Nothing written 
on paper will do this. . . . Should the general government become 
so lost to all sense of honor, and the freedom of the people, as to 
attempt to enslave them, they, who are the descendants of a race of 
men who have dethroned kings, would make an American congress 
tremble; strip them of their public honors, and reduce them to the 
lowest state of degradation.” [II. Ell. Deb. 169.] 

Judge Parsons, afterwards “the celebrated chief justice of Massa¬ 
chusetts,” took the same view in the convention. Speaking of the 
federal government, he said : — 

“ They are the servants of the people, vested with delegated pow¬ 
ers ;... in this case the people divest themselves of nothing.” Again 
he said : “ An increase of powers by usurpation is clearly a violation 
of the federal constitution; ” and the oath to support the instrument 
“ obliges the officers of the several states ” to oppose it. He also 
spoke of another check, founded on the nature of the union, superior 
to all the parchment checks that can be invented. . . . 

“ If there should be a usurpation, it will be upon thirteen legisla¬ 
tures completely organized, possessed of the confidence of the people, 
and having the means, as well as inclination, successfully to oppose 
it.” And he characterized this as an appeal to arms ! [II. Ell. Deb. 
94.] 

Said Fisher Ames, on the same occasion : “ The state governments 
represent the wishes, and feelings, and local interests of the people. 
They will afford a shelter against the abuse of power; and will be the 
natural avengers of our violated rights.” [II. Ell. Deb. 46.] What! 
can the states fight the federal government, if it attempt coercion 1 


392 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


This treason comes from Massachusetts! It is true and sound 
principle. 

Similar Treason from Virginia. — Said Edmund Randolph, the 
then governor of Virginia, afterwards attorney-general, and secretary 
of state under Washington’s administration, in the Virginia ratifying 
convention : Congress cannot “ possibly assume any other power but 
what is contained in the constitution, without absolute usurpation. 
Another security is, that if they attempt such a usurpation, the influ¬ 
ence of the state governments will nip it in the bud of hope. The gov¬ 
ernment will be cautiously watched, and the smallest assumption of 
power will be sounded in alarm to the people, and followed by bold and 
active opposition. ” [III. Ell. Deb. 206-7.] 

Madison not only often spoke of the states as sovereigns, and supe¬ 
rior to the government they formed, but as possessing the absolute 
right of self-defence. For instance, he said Virginia acceded to the 
compact as a “ sovereign state,” and that the said compact “ was to 
be binding on the people of the state only by their own separate as¬ 
sent.” And in speaking, in the Virginia convention, upon the federal 
provision for organizing, arming, and disciplining the militia, he said : 
“If we [the people of Virginia] be dissatisfied with the national gov¬ 
ernment, if we should choose to renounce it, this [the trained militia] is 
an additional safeguard to our defence.” [Ibid. 414.] This means 
nothing, if it does not mean that we can renounce the national gov¬ 
ernment if we choose, and that the militia is ours \i. e. the people of 
Virginia’s] for defence against all comers. Indeed, both Madison and 
Marshall stated in substance that the militia, of original and para¬ 
mount right, belonged to, and could be controlled by, the states. 

Hamilton’s Testimony. — When Hamilton and Madison concur, it 
matters little what others say; but none of the fathers dissented. 

Said Hamilton, in No. 28 of the Federalist: 11 It may safely be re¬ 
ceived as an axiom in our political system, that the state governments will, 
in all possible contingencies, afford complete security against invasions of 
the public liberty by national authority. In a confederacy, the people, 
without exaggeration, may be said to be entirely masters of their own 
fate .” “ The constitution,” said he, in the New York convention, 

“ ought not to be so formed as to prevent the states from providing for 
their own existence, and I maintain that it is not so formed.” And 
in No. 26 of the Federalist he said: 11 The state legislatures ” are 
to be the “ guardians of the rights of the citizens against encroach¬ 
ments of the general government, ... to sound the alarm to the 
people, and not only to be the voice but, if necessary, the arm of their 
discontent .” And he had previously said in the New York assembly 
(February 19, 1787): “Each state possesses in itself full powers of 


SELF-DEFENCE OF STATES. 


393 


government, and can at once, in a regular and constitutional way, 
take measures for the preservation of its rights.” 

Mr. Rives, in his Life of Madison (Vol. II. p. 501), after quoting 
Hamilton’s “axiom in our political system,” that “the state govern¬ 
ments, in all possible contingencies, afford complete security against 
invasions of the public liberty by national authority,” proceeds to say, 
what every investigator knows to be true, that “ this was among the 
considerations most dwelt on by writers of the Federalist, to recom¬ 
mend the constitution to the favor and confidence of the people.” 

The last Reasoning of the States on the Subject.— We see, 
then, that the states, as individuals, not less distinct than so many 
men, associated themselves in their second, and, as they expressed it, 
“ more perfect union.” They, ipso facto , established their general 
agency for self-ruling and self-defence. The instinct and right of 
self-preservation exists in each, as an inherent and inseparable part of 
its nature. Now, had these actors respectively any less desire, aim, and 
duty of self-preservation, after associating? No ! all the fathers recog¬ 
nized, not only the right, but the duty of the state, when it deems its 
existence, its sovereignty, or the essential rights of itself or its people, 
endangered by the acts or menaces of the federal government, to 
oppose them ; and, if the said government persist, to do it with arms ? 
Why ? Because the state is the people, and the only people in the land 
organized into a political commonwealth or corporation, and it has 
all original jurisdiction over every possible matter of life, liberty, and 
property — a jurisdiction coupled with the responsibility of protection 
and defence; and if the federal “ substitutes and agents,” by virtue 
of the small modicum of derivative authority delegated to them, for¬ 
get their derivative and “act as from original power”—transcending 
their bounds, and menacing the liberties of the people, the state must 
interpose its gegis and say : “You were sent forth as subjects, dele¬ 
gates, agents, and servants; if you come back dominating as a sove¬ 
reign, a principal, or a master, and using coercion to effect your will 
and defeat mine, I must meet you with arms ! ” 

Beyond question, then, not only has the federal agency no right to 
coerce its makers, as I have heretofore shown, but these makers 
have, as against it, unlimited right of self-defence, by withdraw¬ 
ing delegations, and recalling their citizens from federal offices; 
by dissociation ; and by fighting, if need be, the federal govern¬ 
ment. Q. E. D. 


CHAPTER VI. 


TRUE LOYALTY IS FIDELITY TO THE STATE. 

OINT VI. _To defend the state with arms, in obedience to her 



JL will, is the duty of the member or citizen, and is not treason 
in any sense; but is true loyalty. 

Several corollaries of vital importance flow from this point, which 
it is well here to state : — 

1. That the primary devotion of the citizen is, and ought to be, to 
his state, so that in a conflict, he would cleave to her against the 
federal government. 

2. That the citizens are the states, and the only citizenship is of 
the states. Necessarily the only allegiance is to states. Both fed¬ 
eral and state constitutions prove these facts. 

3. That the state, being the citizens thereof, and the arms-bearing 
citizens being the military force, the state has the original and supreme 
right — coupled with the duty — to control and use the said force for 
her defence. 

4. That citizens, by defending the state, are defending themselves 
— both individually and collectively — as required by Nature’s first, 
greatest, and best law — the law of self-preservation. 

5. That the citizens, as organized, being, in reality, the governing 
authority, a citizen cannot commit treason, if he obey the common¬ 
wealth, this being the very obligation of the social compact. 

6. And, finally, that the federal constitution proves the state to be 
the sole object of treason. 

A few Explanatory Remarks. — We must keep it in mind that, 
“the state” and the “citizens thereof,” are convertible phrases, the 
citizens being the state. They are the republic, i. e. an organized, 
self-governing commonwealth. The federal agency’s only right to 
the obedience of the citizen is delegated to it by the states. Obeying 
the federal government, therefore, is obeying its creators and sove¬ 
reigns, the states; each citizen obeying because the sovereign, w T hose 
subject he is, commands it. In a word, the citizens, as individuals, 
obey themselves, as commonwealths — this federal contrivance being 


TRUE LOYALTY IS FIDELITY TO THE STATE. 395 


merely their agency for self-government in general matters, just as 
the state government is their agency for self-government in domestic 
affairs. This is republicanism. 

These remarks will enable us the more readily to appreciate the 
following considerations, which will be seen to be those of the fathers 
themselves. 


THE STATE IS THE SOLE OBJECT OF PATRIOTISM. 

1. The fathers consider that the primary devotion of the citizen 
would be, and ought to be, to his state ; so that in case of conflict, 
he would cleave to her against the federal government. 

This natural devotion of citizens to their states, was the fathers’ 
strongest ground of argument against the danger of federal aggression. 
It was treated of by them, as a natural and controlling sentiment of 
the citizen towards the body he was an integral part of, and which 
the social compact bound him to love, honor, and obey. They knew 
that the said commonwealth included and secured all the citizen held 
dear, and that patriotism and loyalty were consonant, if not identical, 
with his self-love, his affection for his family and kindred, and his 
regard for his home treasures, his friends, his neighbors, his fellow- 
citizens, and the palladium that protects them all — the state ! 
These feelings are the necessary elements of patriotism; while the 
federal government, being at best only a political arrangement, or 
agency of the states, which are identical with the said citizens, could 
only be an object of respect and obedience to a given citizen, as long 
as his commonwealth willed him to obey it. 

Let the Fathers express the Glorious Sentiment. — Said John 
Dickinson : “ The trustees or servants of the several states will not 
dare, if they retain their senses, to violate that independent sovereignty 
of their respective states — that justly darling object of American 
affections, to which they are responsible.” These sentiments were 
expressly approved by Washington. Said Hamilton : “There are 
certain social principles in human nature from which we may draw* 
the most solid conclusions, with respect to the conduct of individuals 
and communities. We love our families more than our neighbors. 
We love our neighbors more than our countrymen in general. The 
human affections, like the solar heat, lose their intensity as they 
depart from the centre, and become languid in proportion to the 
expansion of the circle on which they act. On these principles, 
the attachment of the individual will be first and forever secured by 
the state government.” And he believed the states to possess unlimited 
right of self-defence. Said Marshall, in reply to the argument that 
by giving a certain power to the federal government, the states might 



396 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


impair their power of self-defence : “Does not every man feel a refu¬ 
tation of the argument in his own breast'?” — that is to say — Is not 
self-defence the first law of nature 1 This right, as well as the right 
of withdrawing delegated power by the states, he thought unlimited. 
Said Ellsworth : “ I turn my eyes to the states for the preservation 
of my rights. . . . The greatest happiness I expect in this life, I can 
derive from these alone. This happiness depends on their existence, 
as much as a new-born infant on its mother for nourishment.” He 
considered the right of self-defence in states as “ essential ” and un¬ 
limited. 

Every sentiment of the patriotic age was in unison. Not a soul of 
the fathers ever dreamed that any combination of the states, or por¬ 
tion of the people, could legally use the federal government, and its 
vested power and war means, to conquer other states, and to punish 
the citizens of these for treason. Not a soul of them ever supposed 
that defending one’s state was traitorous. State sovereignty — no 
coercion of states — unlimited state defence, were the ideas of all. 

Governor Edmund Randolph, in the Virginia ratifying convention, 
summed up the whole glorious theory of true loyalty, as follows r 
After saying that the rights of the states are “ guarded by the provi¬ 
sions just recited. If you say,” continued he, “ that, notwithstanding 
the most express restrictions, they [the government] may sacrifice the 
rights of the states, then you establish another doctrine — that the 
creature can destroy the creator, which is the most absurd and ridicu¬ 
lous of all doctrines.” [III. Ell. Deb. 363.] 

In other w ? ords, it is absurd and ridiculous to say that the general 
government can coerce states; that the states cannot defend them¬ 
selves ; or that loyalty is due to the created agency, instead of 
the sovereign creators. As Marshall says — “ Every man feels a 
refutation of the argument in his own breast.” 

I conclude, then, that the loyalty of a citizen is due, and that it 
will be given, to his state under all circumstances. Q. E. D. 


CHAPTER VII. 


AMERICAN CITIZENSHIP AND ALLEGIANCE. 

2. 'TT'HE citizens are the state ; the only citizenship is of states ; 

JL and necessarily the only allegiance is to states. These are 
the ideas of both federal and state constitutions, as well as of the 
fathers. 

It is beyond question that the only citizenship originally existent 
in the states that joined themselves in union, was citizenship of a 
state; and citizenship of, and allegiance to, a nation, or a national (or 
federal) government, was never provided for, if it was even thought of. 
This is quite evident from the following clauses : “ The citizens of 
each state shall be entitled to all privileges and immunities of citizens 
in the several states.” [Art. IV. § 2.] “ The judicial power of the 

united states shall extend ... to controversies between citizens of 
different states; between citizens of the same state claiming lands 
under grants of different states; and between a state, or the citizens 
thereof, and foreign states, citizens, or subjects.” [Art. III. § 2. 
See also Amendment XI.] If there were any citizens of a nation, 
they were not recognized or provided for. There were no other 
citizens than “ the citizens of each state,” and their citizenship and 
allegiance was never transferred. The reason is quite obvious. 
States were the constituents of the federal system; and these very 
citizens were the states — each being a member, an integral part of 
his state; and if such transfer had taken place, there would have been 
no more “ citizens of each state,” and it would thus have contradicted 
and defeated the constitution itself; there being no provision for any 
other citizens than those of a state, who must, of course, remain un¬ 
transferred, in order to answer to these descriptions and provisions as 
to “ the citizens of each state,” “ citizens of different states,” etc. 

We see, then, that President Jackson’s statement in his celebrated 
proclamation of 1832 — that “ the allegiance of their citizens was trans¬ 
ferred to the government of the united states ” by their respective states, 
is absolutely untrue, unconstitutional, and absurd. The truth is, 
the proclamation against South Carolina was for an exigency of a 


398 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


politician and his part} 7 , and the subsequent explanation in the Globe 
was for another. Jackson was one of the most illustrious of great 
Americans. Was he not unwittingly one of the most efficient of the 
destroyers of American institutional liberty 1 

False Naturalization. — But there is a provision, which some have 
thought, or pretended to think, referred to, or provided for, another 
citizenship, when really, taken with the above clauses, it is the 
strongest possible evidence to the contrary. “ The congress shall 
have power [not to naturalize, but] to establish a uniform rule of 
naturalization, and uniform laws on the subject of bankruptcies 
throughout the united states.” As to citizenship, the object of the 
clause was to produce uniformity and homogeneousness throughout the 
states. New “citizens of each state ” were to be made of immigrants, 
and as the thirteen states were the necessary actors in naturalizing, 
and aimed at uniformity, they “ delegated ” the power to the congress 
they created, “ to establish a uniform rule,” by which, of course, they 
obligated themselves to act. States were the only authorities that 
could endow foreigners with all civil rights, so as to make them equal 
to native-born citizens — which is the object of naturalization — and 
at the same time protect them in all the civil rights given; for these 
new citizens were to become their members and subjects, and their 
machinery of government includes the only courts that have plenary 
jurisdiction over all the civil rights of citizens. 

But though this is the plain and obvious meaning, congress — so 
prone is power to magnify itself — early began the “ change,” as 
Burke phrases it, “from an immediate state of procuration and 
delegation, to a course of acting as from original power”; and took 
the exclusive jurisdiction of the whole subject; acted as the sovereign 
naturalizing authority, and secured allegiance of the new 7 citizens to 
the general government, thus making a second class of citizens, and 
defeating the very uniformity the two clauses quoted above were 
intended to produce. One class was the whole body of original 
citizens and their descendants, whose allegiance to the state was never 
changed; and the other comprised such foreigners as, being natural¬ 
ized by law of congress, swore allegiance to a pseudo-sovereignty, and 
became members or citizens of a supposititious nation. 1 

If any one doubt this view, let him answer when, where, how, and 
to whom the allegiance was changed from the state. Where is the 
record of such change 1 He will see, the moment he attempts an 
answer, that the claim of allegiance for the federal agency is false and 

1 A singular mistake was made by the confederate constitution-makers — considering 
that they seceded to save statehood — in giving the confederate congress the power “to 
make [not “ a uniform rule,” but] uniform laws of naturalization.” 


AMERICAN CITIZENSHIP AND ALLEGIANCE. 


399 


preposterous. There could be no allegiance to those who at best were 
“ representatives,” “ delegates,” “ trustees,” “ substitutes,” “ agents,” 

“ servants,” as all the fathers invariably called them, and as they 
have always been characterized by the states and people. 

Let the States testify on Citizenship. — The evidence of the follow¬ 
ing states is conclusive, that they never thought of the transfer of the 
very integers of which they are entirely and exclusively composed — 
their citizens — to their agency of government. Self-preservation was 
their first law, and to keep the allegiance of their constituent mem¬ 
bers was a sine qua non. 

Maine, in her constitution of 1819, declares that “ every citizen may 
freely speak, write, and publish his sentiments,” etc., and that “ every 
citizen has the right to keep and bear arms,” etc. 

Massachusetts, in her present constitution, says, “ every subject of 
the commonwealth” has a right to redress for all injuries and wrongs; 
and that “every male citizen” of the state (i. e. “subject of the 
commonwealth”), possessing certain qualifications, is entitled to a 
vote. 

New Hampshire — constitution of 1792 — declares that, “every 
citizen of this state is entitled,” etc. 

Vermont, in her constitution, calls her native citizens “ natural 
born subjects of this state.” 

Connecticut — constitution of 1818 — declares that, “ every citizen 
has a right to bear arms in defence of himself and the state.” 

New York — constitution of 1846 — declares that “no authority 
can, on any pretence whatever, be exercised over the citizens of this 
state, but such as is, or shall be, derived from, and granted by, the 
people of this state; ” and that “ no member of this state shall be 
deprived of life, liberty, or property, without due process of law.” 

Pennsylvania — constitution of 1790 — declares that the voting 
and holding of office shall only be by citizens of the state; and that 
“ the right of the citizens to bear arms in defence of themselves and 
the state, shall not be questioned.” 

Maryland — constitution of 1801 — declares that “ every free 
white male citizen of this state, and no other, above twenty-one years 
of age . . . shall have a right of suffrage,” etc. 

South Carolina — constitution of 1803 — provides that every 
voter must be “ a citizen of this state.” 

See also the constitutions of Georgia, 1798; Kentucky, 1/99; 
Ohio, 1802; Indiana, 1816. Also the constitutions of Virginia, 
North Carolina, Delaware, Illinois, and others. 

Several of the constitutions contain a clause similar to the following 
in that of Illinois, in 1828, and perhaps now: If, when the sense of 


400 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


the people shall be taken, as to holding a convention to change the 
organic law, “it shall appear that a majority of all the citizens of the 
state . . . have voted for a convention,” the general assembly shall 
call one. 

For further information on this subject, see generally the original 
state constitutions. Some modern ones may be framed on Presi¬ 
dent Jackson’s mischievous idea of a “ transfer of citizenship to the 
government of the united states,” for it is not uncommon in these 
bad and sad days, for ignorance and wickedness to accomplish, 
through organic laws, what force and fraud are constantly doing in 
spite of them . 1 

Testimony of the States on Allegiance. —As the only citizenship 
is in the state, the only allegiance is due to it. We have no king or 
prince, and no tie of allegiance that is not in the social compact form¬ 
ing the republic; and it is remarkable and conclusive that the only 
constitutional declarations and claims of allegiance in the united states, 
are by states, there being no such claim in the federal compact, either 
expressly or by implication. In many state constitutions the claim 
of allegiance is found in juxtaposition with the sovereignty, citizen¬ 
ship, and treason clauses. 

Massachusetts, the great original exponent of, and stickler for, 
state sovereignty in the union, exacts the following oath of allegiance 
from all her officers : “ I, A. B., do solemnly swear that I will hear 
true faith and allegiance to the commonwealth of Massachusetts , and will 
support the constitution thereof. So help me God.” 

New Hampshire has a similar oath. 

1 A democratic caucus of congressmen is said to have “resolved” at Washington, 
two or three years ago (probably as a guess at the meaning of Amendment XIV.), 
“that the government of the united states and the government of the several states are 
distinct, and each has citizens of its own , who owe it allegiance; ’’ that is to say, the 
citizens do not belong to the states or the nation, but to the governments thereof; and 
they owe their allegiance to the said agencies, and not to the principals and sovereigns 
— the people. If this statement be not the reductio ad absurdum , the entire baseless¬ 
ness of it becomes apparent when we reflect that Amendment XIV. was not purposed to 
change the political and civil status of thirty odd millions of self-organized and self- 
governing people, so as to make them citizens of, and allegiant to, governmental agen¬ 
cies, instead of the collective form of themselves, but simply aimed to citizenize the 
negroes , and provide for them in their new character. So that when the said amend¬ 
ment says the people are citizens of the united states, and of the states, it repeats the 
phrases of the original constitution, — simply reversing their order — and, in effect, 
reiterates “the supreme law” that “the people” (now meaning by that expression 
blacks as well as whites) are citizens of different states [Art. III. § 2], with the right to 
“all privileges and immunities of citizens in the several states" [Art. IV. § 2] to which 
they may go. 

The flagrantly revolutionary character of this “expounding” will be realized in 
studying the diagram and explanation on pp. 308, 309, supra , and the extract from 
No. 46 of the Federalist, in Appendix D. It will be seen that these expounders — as 
Madison said of their prototypes — “ lose sight of the people ! ” 


AMERICAN CITIZENSHIP AND ALLEGIANCE. 


401 


Vermont requires “every officer, whether judicial, executive, or 
military, to take and subscribe the following oath or affirmation of 
allegiance to this state ” (then follows the form). She further de¬ 
clared, in her constitution of 1793, that “every person of good char¬ 
acter, coming to settle in the state,” may acquire and hold real 
property, and have “ all rights of a natural-born subject of this state,” 
after “taking an oath or affirmation of allegiance to the same.” 

Kentucky, in her constitution of 1799, imposes the following oath 
of allegiance on all her officers: “ I do solemnly swear that I will be 
faithful and true to the commonwealth of Kentucky so long as I 
continue a citizen thereof.” 

Georgia, in her constitution of 1798, required all officers to swear 
to observe true faith and allegiance to the same. 

Maryland has, in her constitution, the following oath for her offi¬ 
cers ; “ I, A. B., do swear . . . that I will be faithful and bear true 
allegiance to the state of Maryland.” 

Other constitutions could be cited, but these will suffice. 

I will observe, en passant, that some of the later constitutions 
require the official citizen to swear to support both the federal and 
the state constitutions; but this is none the less an oath of allegiance 
to the state, both constitutions being her fundamental laws. 

These quotations show that the union was formed with full evi¬ 
dence in the very organic laws of the states forming it, that citizen¬ 
ship and allegiance belong alone to the states, which is precisely 
what the federal compact itself proves, as heretofore shown. Nay 
more, as Vermont and Kentucky were admitted in 1791 and 1792, and 
as, in 1793 and 1799, they made, without any objection, the sovereign 
provisions concerning allegiance just quoted, all the states (i. e. all the 
people), as well as the federal government, are concluded against 
denying that the allegiance of a citizen is solely due to his state. 

And all these state constitutions contain a treason clause which is 
just as applicable to a citizen fighting for and aiding the “Union” 
against his state, as it is for his doing so for any other assailant. 
This will be conclusively shown further along. 

Furthermore, the obligation of the oath to support and defend the 
constitution binds every federal officer to act on the idea that cit¬ 
izenship belongs, and allegiance is due, to states ; not only because 
the said constitution declares the citizen to belong to the state, but 
because allegiance is an essential and ante-constitutional right, per¬ 
taining to the very existence of the state, which, if it could be, is 
not expressly granted, and hence must be among the state’s reserved 
rights. He must defend the states, because they are the parties to, 
and actors under, the compact. They exclusively are all there is of 

26 



402 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


united states or government, and he must be a citizen and subject of 
a state before he can be a united states officer. 

So, in every point of view, President Jackson’s assertion of the trans¬ 
fer of citizenship and allegiance is untrue and baseless. Society as 
formed is sovereign, the members being citizens and subjects bound 
in the social compact; which is the only possible tie of allegiance, for 
the double reason that there is no king, and that society actually 
rules and protects its subjects, and is therefore necessarily entitled to 
the reciprocal obligation of allegiance. 

Jefferson Davis or Robert Lee, then, never violated any allegiance, 
as he never “ levied war against ” Mississippi or Virginia, or any set 
of states that she was in point of fact united to, or adhered to their 
enemies, giving them aid and comfort.” There can be no other 
united states, as to Davis, than his state and her sisters, who choose 
to be associated. He therefore comes not within the federal treason 
clause. His sovereign had a political will, in which his own was 
necessarily merged, and he, as but one of her hundreds of thousands 
of citizens, could but yield to the power which, de facto, had constitu¬ 
tional possession of him, and which deported him from the union, re¬ 
gardless of his will, and commanded him to defend her. He could 
not do otherwise than obey, leaving the settlement of all questions 
of technical right to tribunals, to negotiation, or to the arbitrament 
of war. 

I reiterate, then, that the citizens are the state, and that the only 
citizenship and allegiance in the American polity, and contemplated 
by the fathers, were of and to states. Q. E. D. 


CHAPTER VIII. 


THE STATE IS ABSOLUTE OVER THE SOLDIERY. 

3. * I A HE state being the citizens thereof, and the arms-bearing 
X citizens being the military force, the state has the original 
and supreme right, coupled with the duty, to control the said force, 
for her defence. 

Their social instinct, and their instinct, right, and duty of self-pres¬ 
ervation, moved the people to form themselves into commonwealths, 
to protect themselves and their belongings. For further security 
they, as states, afterwards united in federal union : “ to bind, in one 
ligament, the strength of thirteen states.” [Pendleton in Va. conv.] 

Politically speaking, “ the people ” — as has been said — could only 
exist and exert will as states. It was only as states that they could 
create and operate a federal government, or governmental agency. 
Now, look at the proposition, that “the people’s” own agent — the 
federal government — can draw them, as individual soldiers, from the 
state, and arm, train, and compel them, under penalties, to fight 
the body politic they themselves, and their families, friends,'and 
neighbors, compose; or, in other words, that the voting and fighting 
men, who practically constitute the state, can by her federal agency 
be marshalled, armed, and led to whip the women and children 
thereof! 

The military force contemplated for the united states was primarily 
the people — the citizen soldiery. The people were to think for 
themselves, vote for themselves, fight for themselves; and since inde¬ 
pendence, they never have had the slightest sparkle of political exist¬ 
ence, or capacity for political action, either in peace or war, except as 
states — absolute commonwealths. 

What does Massachusetts say? — The old Bay State never thought 
otherwise. She regards the militia as her soldiers, and the only pur¬ 
pose of them to be her defence; and she considers federal control as 
exceptional, and as specifically agreed upon and ordained by herself 
and her sister states for her and their “ defence ” and “ welfare,” and 


• 404 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


the preservation of “ the blessings of liberty ” common to all of them, 
principal among which blessings, are the rights of complete self-organ¬ 
ization and existence, self-association, self-protection, and self-ruling, 
as commonwealths, whether several or united. 

Hence she declares herself to be the absolute sovereign of her terri¬ 
tory and people; she organizes her citizens as soldiers; she appoints 
and commissions all military officers; she requires of all officials an 
oath of allegiance to her; she defines treason of her citizens or sub¬ 
jects to be the waging of war against her, and giving aid and com¬ 
fort to her enemies; and she attaches to it the penalty of death; and 
by these means she, with original, inherent, and supreme right, abso¬ 
lutely controls her militia, i. e. the whole body of her citizens capable 
of bearing arms. 

Her fundamental law declares that her governor is the “com¬ 
mander-in-chief of all her land and naval forces,” and is empowered 
and instructed, “for the special defence and safety of the common¬ 
wealth, to assemble in martial array, and put in warlike posture, the 
inhabitants thereof, and to lead and conduct them; and with them 
to encounter, repel, resist, expel and pursue, by force of arms, . . . 
and also to kill, slay, and destroy, ... all and every such person 
and persons as shall at any time hereafter, in a hostile manner, at¬ 
tempt or enterprise the destruction, invasion, detriment, or annoy¬ 
ance of this commonwealth.” Here is provision for her whole military 
force to be used to defeat usurpation, or repel aggression of the fed¬ 
eral government; and this would have been done, in the second 
British war, if the said government had persisted in its claims, and 
peace had not supervened. If she thought the federal government 
sovereign over her as a political body, why, in 1795, did she deem it 
unnecessary and inexpedient to change the above, and her declaration 
of “sovereignty”'? And why did she, in the convention of 1820, re¬ 
ject an amendment modifying the above article! Simply because she 
has never parted with her sovereignty, and she is determined, when 
occasion shall arise, to defend it with her whole physical force. Her 
declarations of absolute sovereignty, and the provisions for the use of 
all her strength, remain her organic laws now. She claims the right 
to use force against the federal government; and, as will be seen, she 
says emphatically, that she intends to use it when she deems it neces¬ 
sary. And she is right, for the militia are her subjects, and the federal 
government can have no authority over them but what she expressly 
confides or entrusts. 

And she and the other states always meant by the maxim that the 
military is and must be kept subordinate to the civil authority, that it 
belongs to and is under the state, as its means and instrument of self- 


THE STATE IS ABSOLUTE OYER THE SOLDIERY. 405 


government and self-protection, whenever public fighting, or a show 
of public force, is, or may be, needed. It can only have power and 
existence under the law, and must of course be always subordinate 
to, and controlled by, the source of the law, the organized will of the 
people. 

And it is well to say here, that the constitution throughout con¬ 
templates the use of men and means in warfare, for the “ defence ” of 
the people, and never for attack. Self-attack, and possible self-destruc¬ 
tion, could never be predicated or presumed of the intention of states, 
in uniting for “ defence ” and “ welfare.” 

Her Political Action in the Union. — In her law entitled “ An act 
for regulating, governing, and training the militia of this common¬ 
wealth,” passed March 6, 1810, she quotes from the act of congress 
“ to provide for the national defence, by establishing a uniform militia 
throughout the united states,” passed May 8th, 1792, the provision 
“ that each and every free able-bodied citizen of the respective states, 
resident therein,” who is over eighteen and under forty-five, shall be 
enrolled, etc.; and she then proceeds to provide for her most absolute 
control of her militia. Among other provisions showing her autocratic 
determination in this regard, are those referring to the appointment 
and commissioning of the officers, and the oaths to be exacted from 
each. The latter are as follows : — 

1. “ I, A. B., do truly and sincerely acknowledge, profess, testify, 
and declare, that the commonwealth of Massachusetts is, and of right 
ought to be, a free, sovereign, and independent state. And I do 
swear that I will bear true faith and allegiance to the said common¬ 
wealth, and that I will defend the same against traitorous conspiracies, 
and all hostile attempts whatsoever; and that I do renounce all alle¬ 
giance, subjection, and obedience to the king, queen, or government of 
Great Britain, and every other foreign power whatsoever; and that 
no foreign prince, person, prelate, or state hath, or ought to have, 
any jurisdiction, superiority, pre-eminence, authority, dispensing or 
other power in any matter, civil, ecclesiastical, or spiritual, within 
this commonwealth, except the authority and power which is, or may 
be vested, by their constituents, in the congress of the united states. 

And I do further testify and declare that no man, nor body of men, 
hath or can have any right to absolve or discharge me from the 
obligation of this oath, declaration, or affirmation; and that I do 
make this acknowledgment, profession, testimonial, declaration, de¬ 
nial, renunciation, and abjuration, heartily and truly, according to 
the common meaning and acceptation of the foregoing words, with¬ 
out any equivocation, mental evasion, or secret reservation whatsoever, 
so help me God ” ! 


406 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


2. The oath of office to discharge the duties faithfully according to 
“ the constitution and laws of this commonwealth.” 

3. “I, A. B., do swear that I will support the constitution of the 
united states.” 

Ah! in the brave days of old, she was autocratic in voice and act. 
She had not then been degraded by her own sons to a county or prov¬ 
ince — a mere jewel in the crown of King Union ! 

How did she act in 1814 when her federal government was warring 
in defence of her rights 1 As a county h Oh, no! Her agency at 
Washington wanted some of her soldiers to use “ for the common 
defence”—including hers, of course.” She constantly opposed the 
war and requisitions, and when she feared the federal powers she 
thought to be usurped were about to be executed on her men and means, 
she, with Connecticut and Rhode Island, and a few delegates from 
other states, held the Hartford Convention, which thus expressed her 
views as a sovereign : “ In this whole series of devices and measures 
for raising men, this convention discern a total disregard for the con¬ 
stitution, . . . and a disposition to violate its provisions, demanding 
from the individual states a firm and decided opposition. . . . Acts 
of congress, in violation of the constitution, are absolutely void. . . . 
It will be proper for the several states to await the ultimate disposal 
of the obnoxious measures recommended by the secretary of war, or 
pending before congress; and so to use their power, according to the 
character these measures shall finally assume, as effectually to protect 
their own sovereignty, and the rights and liberties of their citizens.” 
The convention proceeds “to recommend to the legislatures of the 
states represented therein, to adopt all such measures as may be 
necessary effectually to protect the citizens of the said states from the 
operation and effects of all acts of congress”—such as those above 
characterized; also to recommend negotiations with the federal gov¬ 
ernment and also, “ if the application of these states be unsuccessful, 
that they hold a convention at Boston next June, with such powers 
and instructions as the exigency of a crisis so momentous may 
require.” 

Fortunately, however, the ambassadors sent by Queen Massachu¬ 
setts soon reported that “peace” “happily superseded the necessity 
of the arrangements [being made] for the defence of the common¬ 
wealth.” 

To sum up, then, although Massachusetts may have been, as some 
think, selfish and ungenerous, as well as morally wrong, she was con¬ 
stitutionally on impregnable ground. She was no mere province. 
Possessing original, inherent, and unlimited rights, but no deriva¬ 
tive ones whatever, she was an independent state, with a sovereign 


THE STATE IS ABSOLUTE OVER THE SOLDIERY. 407 


will; and she simply acted as such. And though she and others may 
by war have forced the subject states to “ consent ” to a change of 
faith and works, yet she keeps the old faith. By legislative act of May 
8th, 1866, she puts herself on a war footing, evidently knowing that 
the precedent of coercing states might be applied to her. In said act, 
she provides that every commissioned officer shall, before doing duty, 
take and subscribe the following oaths and declarations : “ I, A. B., do 
solemnly swear that I will bear true faith and allegiance to the com¬ 
monwealth of Massachusetts; and I will support the constitution 
thereof; so help me God.” He is also sworn to do the duties of the 
office, and to support the constitution of the united states. 

I reiterate, then, on the high and august authority of Queen Mas¬ 
sachusetts, the third idea of the point under discussion, the republican 
idea : that the state being the citizens thereof, and the arms-bear- 
ing citizens being the military force, the state has the original and 
supreme right, coupled with the duty, to control the said force, 
for her defence. Q. E. D. 


CHAPTER IX. 


DEFENDING ONE’S STATE IS SELF-DEFENCE. 

4 . 'T^HAT citizens, by defending the state, are defending them- 
JL selves, as required by Nature's first and most imperative 

law. 

Man, the natural being, is not more a creation of God, than is the 
civil being called the state; for the latter is formed by men, under 
the promptings of the nature created by the Deity. Self-preservation 
is the first law for both man and state; and, indeed, man was 
prompted to form society by this very instinct, society simply being 
men organized for self-preservation. 

Republican society is necessarily a consensual arrangement of the 
people who compose it; for as every man has a right to expatriate 
himself, his staying therein, and being a part thereof, is by consent. 
The accountability of the members to God for proper conduct in all 
things, shows the self-ruling of society to involve the only divine right 
of government that can be vested in human beings. Such account¬ 
ability were unjust, if such right were withheld or limited. To state 
it more amply, it is, 1st, the right to be a self-formed society; 2d, 
the right of the said society absolutely to govern itself; and 3d, the 
said society’s unlimited right of self-defence. As to the last point — 
the others having been sufficiently treated of — the same God-given 
instinct of self-preservation which, as heretofore stated, prompted men 
to form society, must make self-preservation “the first law of nature ” 
to it, just as surely as it is “ the first law of nature ” to each member 
thereof. 

Hence, as an American state is the only political society of the 
people ever formed; as such state is “thepeople;” as it is recognized, 
throughout the federal pact, as the complete body that coacted with 
its peers in forming the federal constitution of self-government; as it 
“contains within itself” — to use the words of Hamilton — “all the 
powers of governmentas it declares all power [t. e. sovereignty] to 
be inherent in itself; and as the only powers parted with are dele¬ 
gated, — it follows necessarily that this moral person can at any mo- 


DEFENDING ONE’S STATE IS SELF-DEFENCE. 


409 


ment, with or without reason, and, <X fortiori , for self-preservation, 
gather in all her entrusted or delegated powers, recall her citizens 
from federal offices, and say to them, and the rest of her sons, in case 
of federal menace or attack : “ I am the state, and you collectively 
are myself—‘bone of my bone and flesh of my flesh.’ Arm your¬ 
selves to defend my life, my integrity, and my sovereignty ! The 
collective people, according to the social compact, have the right to 
govern and command the individual. By obeying and defending 
myself, my will, and my law, you defend your individual selves, and 
all you hold dear on earth.” 

The question here suggests itself for passing notice : Where is the 
right of ultimate judgment and decision on points vital to the repub¬ 
lic — the commonwealth — the citadel of freedom, and the palladium 
of the people’s rights and blessings It were simply absurd to say r 
It is in the government, which is only derivative; and not in the 
collective people, who have, inalienably, the only original and inherent 
power of self-government. Did the people, in attempting to govern 
themselves, make a machine that has the right, if they resist, to 
grind them to powder 1 The matter is too plain for argument. [See 
Part IV. ch. XL] 

It is unquestionable, then, that, by defending the state, citizens 
are defending themselves, as required by nature’s first and most im¬ 
perative law. Q, E. D. 


DEFENDING ONE’S STATE IS NOT TREASON. 

5. That, as the citizens in organization are the integers and gov¬ 
erning authority of the republic, a citizen cannot commit treason 
by obeying the will of the body, for this is precisely his obligation 
in the social compact, and, of course, his highest political duty. 

This corollary is so important and vital, that I feel justified in 
repeating, that the Almighty, in making men free moral agents, 
designed them for self-government, and capacitated them for it; that 
it were Divine injustice to require them to answer for “the deeds 
done in the body,” if they have not full choice in all matters of 
government; that, prompted by the social instinct, they form society 
to unite their strength, wisdom, and means for self-protection and 
self-rule; that thus is the society, called the commonwealth, formed; 
that it governs by Divine right, and acts in all things as a unit or 
moral person; that it is only in this collective form and way that 
men are capable of political self-government; that as individuals they 
are merged in the society, without the reservation of any political 
rights whatever, and are under voluntary engagement to be governed 
and bound by the action of the said state, as long as they remain 



410 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


members thereof. Referring to Part IV., chapters I. and II., on the 
formation of a state, I will quote here, as sufficient — nay, conclusive 
— what Massachusetts has declared from the beginning till now, viz.: 
that “ the body politic is ... a voluntary association of individuals ;” 
and that “the whole people covenant with each citizen, and each cit¬ 
izen with the whole people, that all shall be governed by certain laws 
for the common good;” that is to say, the collective members are to 
govern and control each individual one, for all the purposes of society. 

Accordingly, she declares that “the people ... do hereby solemnly 
and mutually agree with each other, to form themselves into a free, 
sovereign, and independent body-politic or state, by the name of The 
Commonwealth of Massachusetts.” [See const. Mass.] 

Hence each person is, as New York calls him, a “member of this 
state,” or as Massachusetts expresses it, a “ subject of this common¬ 
wealth,” or as the federal and other constitutions declare, a “ citizen 
of the state.” Indeed, each person is an integral part of his own 
commonwealth, and no original relations can exist between him and 
any other political society. And as neither the federal constitution 
nor history hints at any other relation, or at even the slightest change 
in the bodies-politic, any one of them, as to subjectship and allegiance, 
must stand in the same relation to her people as does king, prince, 
or feudal lord to his; and be the only object of treason. 

And here comes in with peculiar force the admission of Mr. Curtis, 
heretofore quoted, [see Part IY. chapter VII.] : “ The relations of the 
individual to the political society, of which he is a member . . . came 
into existence as soon as a sovereign American state was formed out 
of a revolted British colony.” 

Our Federal Compact changed Neither States nor Citizens. —We 

must steadily and determinedly keep it in mind that the states, in 
making their constitution, were providing for government, and not 
constituting society. They themselves were societies, complete ones ; 
and their citizens were the integers, making up the state in each 
instance, just as bricks and lumber make up the building. At that 
very time, New York called them “members” of herself; Massachu¬ 
setts called them “ subjects ” of herself, as did Vermont; the states 
generally characterized them as “citizens” of themselves; and the 
federal compact repeatedly provided for all “the people of the 
UNITED STATES ” as “ CITIZENS OF DIFFERENT STATES.” 

It is certain, then, that each and every American citizen had, at 
the beginning, i. e. before as well as after the constitution was formed, 
the status of the citizen of a state ; and it is equally certain that the 
doctrine of a national citizenship is an untruth — an absurdity. 
Surely so important an event as the change of the status of citizens of 


DEFENDING ONE’S STATE IS SELF-DEFENCE. 


411 


states, so as to give them the status of citizens of an all-comprehend¬ 
ing state or nation, would have a conspicuous history; but there is no 
evidence of it — not a word ! 

Having shown that no change was made in the status of citizens by 
the original compact, let me show that 

No Change is made by the Late Amendments. —Amendment XIV., 
the only one that could have such effect — provides that “ all persons 
born or naturalized in the united states, and subject to the jurisdic¬ 
tion thereof, are citizens of the united states, and of the states wherein 
they reside.” 

This — construed, as it must be, with the rest of the constitution, 
so as to make all parts effective, there being no inconsistency — leaves 
citizenship as a status precisely where it was : the first idea in im¬ 
portance being that the people are “ citizens of different states ” just as 
they are all repeatedly described and provided for in the constitu¬ 
tion ; and the second idea is couched in the convenient generalization 
— “ citizens of the united states,” which can only mean “ citizens of 
different states ” who, in the compact of their sovereigns, are provided 
for as follows (italics mine) : “ The citizens of each state shall be en¬ 
titled to all privileges and immunities of citizens in the several states.” 
[Art. IV. § 2.] 

This is all that Amendment XIV. can, as to this subject, possibly 
mea n — except that within its description come the negroes, who are 
citizenized thereby, and made the equals of the former “ citizens of 
different states ” and “ citizens of the united states.” There is in the 
amendment no sign of any intent, 1st, to change previous citizens in 
their status ; or 2d, to make unequal citizens, i. e., to place the new 
ones, in any respect, on any different footing from the old ones. 

I submit, then, these conclusions : — 

1. That there was in the original constitution no change of the 
status of “ citizens of different.states ” who are “ citizens of the united 
states.” 

2. That this status was not changed by Amendment XIV., but that 
the negroes had such status conferred on them by it. 

3. That, with this exception, the late amendments merely extend 
federal civil jurisdiction. 

4. That federal coercion is, as originally intended, on persons only, 
and is that of law, through the magistracy. 

5. That the people are the state, and the state is the people; these 
entities, as named and provided for in “the supreme law, ” being in no 
wise changed. 

The error of the expounders on this subject springs from forget¬ 
ting that the commonwealth or republic is a society of people, purposed 


412 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


and organized for self-government; and that hence self-government 
must be functional action , in nowise self-destructive, or, even self-inju¬ 
rious. The state is complete, and is perfectly formed and fitted to do 
all the acts of government, e. g ., constitute governments, delegate 
powers, elect or appoint representatives, federate with other societies, 
&c., &c. These are all functional acts, to do which she has the 
machinery of intellect—including the judgment and will, which she 
has always acted with, whenever any question arose pertaining to her 
“defence” and “welfare.” In her constitution of 1780, existent 
to-day, Massachusetts declares her “right to institute, reform, alter 
or totally change” the government “at pleasure.” She has done 
so many times, notably when she united with her sisters and made a 
general government. This act wrought no change in her; and the 
word “Massachusetts ” must mean to-day what it did in 1788, when 
that sovereign placed it, w T ith her delegations, stipulations, and condi¬ 
tions, in the federal compact. She was not then melted into her 
elements, and poured into a national mould. She is now unchanged 
Massachusetts, and can do every functional act she ever could. She 
is composed exclusively of her members or subjects, and in governing 
herself she controls them. 

Hence I repeat that, as the citizens in organization are the inte¬ 
gers and governing authority of the republic, a citizen cannot commit 
treason by obeying the will of the body, for this is precisely his obli¬ 
gation in the social compact, and, of course, his highest political 
duty. Q . E. D. 


CHAPTER X. 


ALL TREASON IS AGAINST THE STATE. 



In discussing this.point, I do not aim at a historical, legal, or philo¬ 
sophical disquisition on the subject, so much as to show the design 
of the framers; the intent of the commonwealths; the impression 
made upon the people; and, in short, the understanding with which 
all acted. 

Not only does the federal instrument, as we have seen, prove citi¬ 
zenship and allegiance to belong to states, but it gives a striking cor¬ 
roboration of the view I have presented on treason. We have seen 
that the states, by ratifying, ordained and established the constitution, 
to provide for and effect their defence and welfare, and secure the 
blessings of liberty to themselves and their people; that, ipso facto , 
the ratifiers associated themselves; that they are named in the instru¬ 
ment and recognized throughout, and especially in the last article, as 
the only parties, and the prospective actors; and that the said con¬ 
stitution is their law — their supreme law. 

The Treason-Clause is the Law of the States. — Of course the trea¬ 
son-clause must be their law, bearing solely on their citizens — that is 
to say, on all the citizens of the states that associated themselves. It 
reads thus : “ Treason against the united states [not “ the nation ” — 
not “the people” —not “the government’’] shall consist only in 
levying war against them , or in adhering to their enemies, giving them 
aid and comfort.” Mr. Curtis, the “ Massachusetts school’s ” “ histo¬ 
rian of the constitution,” says this clause was designed “to defend the 
supremacy of the national governmenti. e. the sovereignty thereof. 
But the said government is not mentioned; and when Mr. Curtis 
shows that “ the government of ” the united states is the united states 
themselves, it can be proved, by the same logic, that the horse of 
Mr. Curtis is Mr. Curtis himself. Besides, it is very singular, if the 
plural pronouns “them” and “their” stand for government — a 
singular word not in the sentence — instead of “ states,” which is 


414 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


their plural antecedent. In truth, the only purpose of the clause is to 
compel citizens to obey the will or law of their respective states, as 
expressed in the federal compact; and to be true to the said states 
singly and collectively. And it is obvious that refusal to obey is 
disobedience to the state, and that warlike resistance is treason to the 
state, for which offence the state necessarily has the original right to 
punish; the right of the federal government to do so being merely 
delegative and derivative from the states. 

We see, then, that the federal compact itself positively proves, in 
the citizenship and treason clauses, that the only object of allegiance 
and treason is this sovereign society of people, called the state. Our 
only monarch for allegiance is society, or the organized people; and 
our only tie, answering to the allegiance of political science, is the 
social compact. Republican allegiance must involve fidelity to society 
in return for society’s protection ; and treason must be a violation of 
this allegiance. And, accordingly, the state constitution provides for 
treason against the state per se, and the federal one for treason against 
her and her chosen associates, both laws being her will and voice; 
and both being evidenced by acts of conventions, representing the sove¬ 
reignty of the state, and deriving all their life and force therefrom. 
The key-note of all the acts of the states and the utterances of the 
fathers is that “ the sovereign authority of the state is the palladium of 
the private and personal rights of the citizens ” [Samuel Adams]; 
there being no people but states, no state but citizens, and no sem¬ 
blance of a nation that is not composed of the very states which 
agreed, in specified matters, to govern themselves together, and made 
all federal institutions to protect themselves, and, ipso facto , their 
citizens, as the sacred records of our country all conclusively show. 

The federal instrument itself proves this view, not only, 1st, 
in asserting treason against the several individuals associated, to 
be “ levying war against them , or in adhering to their enemies ”; but 
2d, in declaring all the people to be members and “ citizens of 
different states,” and providing for them as such. This is really the 
end of argument, for treason in a republic must be a crime against 
the commonwealth, which the one charged is bound to obey. As to 
the general government, it must be subject to its creators; and all its 
powers must be derived from them. It has no inherent vitality and 
strength — no original authority — nothing that is underived — noth¬ 
ing that is not subject. Hence, not it, but the original and creative 
power above it, must be the object of treason. 

Yes, it is the republics or people-governments themselves, and not 
their mere artificial and governmental institutions, endowed with 
trusted authority only, that define and denounce “ treason against the 


ALL TREASON IS AGAINST THE STATE. 


415 


united states,” and delegate the power, and appoint the functionaries, 
to punish. And each state laid her law upon her own subjects, as is 
absolutely proved in Part II. So we find it beyond question that 
federal jurisdiction in any given state, and the legal force of the 
treason-clause on her citizens, flow from her sovereignty alone. 

Inter-state Faith is the Sole Basis. — As the states were pre¬ 
existent moral persons, had minds, and came together through mental 
action, they are necessarily in a voluntary union; and are bound in 
association, and moved to their societal duty by plighted faith. 
Each promises that, in certain matters, her subjects shall obey the 
will of all; and she “lays the law,” i. e. the federal compact, on them 
to that effect; delegating to the association the power to try and 
punish federal treason, which is hostile opposition to the federal will, 
which will she has pledged her faith her subjects shall obey. In 
truth, everything federal is based on this faith, which is more than 
knightly or royal, it being the faith of all the people both in their 
individual and collective capacity. This faith pervades — nay, it is 
the be-all and the end-all of the constitution — its most important 
expression being the guaranty of all the states to each that she shall 
be and act as a republic or self-governing people. [Art. IV. § 4.] 

It is beyond controversy, then, that treason against the united 
states is a violation of allegiance to the state, in disobeying and fight¬ 
ing against her authority in the federal constitution; and that she 
has defined it in her said supreme law, and delegated jurisdiction to 
her agency — the federal government — to try the offender and pun¬ 
ish him. This becomes clear, when we reflect that the state could 
have declined to delegate, and could have “ reserved ” to herself the 
power to punish treason against the united states, just as she could 
have done in respect to any other power. Indeed, she might have 
reserved half the powers she delegated in the compact, and still have 
had as extensive an instrument as was the first “ federal constitu¬ 
tion”— that of 1778. 

Now, let us apply, and at the same time illustrate, the above prin¬ 
ciples, by showing the testimony and the functional action of the two 
most important of the original states. 

Let us first see the case of Virginia. — In providing for self-pres¬ 
ervation, and also self-government, in matters common to her and her 
sister states, Virginia held her convention of her own motion, and in 
her own time and place, and declared her sovereign will as follows: 
“We ... in convention, ... in the name and behalf of . . . Virginia, 
do . . . ratify the constitution, . . . hereby announcing . . . that the 
said constitution is binding on the said people , according to an authen¬ 
tic copy hereto annexed, in the words following,” &c. In her then 


41G 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


existing and solemnly established character as a “ free, sovereign, 
and independent state,” she then and there completed her ratify¬ 
ing, ordaining and establishing of the constitution, and, ipso facto , 
her union with the other states. In every possible respect, she was 
Virginia after the establishment, and was under obligations of faith to 
act as such in the union. She was named in article I., with her 
statehood, faculties, and sovereignty intact. Said Chancellor Pendle¬ 
ton, the president of the ratifying convention, — no one dissenting, — 
“ Our purpose is to be intimately connected wfith the other tw r elve 
states; to establish one common government, and bind in one liga¬ 
ment the strength of thirteen states.” It is impossible to suppose 
she did not survive ratification, or that she was, with the other twelve, 
consolidated into one. No record shows any nationalizing process, 
but all the evidence is that such an idea was emphatically repudiated. 
[See Part IIP., chapter VII.] 

So we see that “ sovereign, free, and independent ” Virginia, as she 
and all her sisters declared her to be, did, by her sovereign power, 
subject her citizens to her supreme law — the federal constitution, or, 
in other words, “ laid the law on ” her people — to use the apt expres¬ 
sion of Rufus King. They still remained her citizens, and were rec¬ 
ognized as such by clauses interwoven, in the federal constitution, 
with the very treason-article which was invoked to punish the said 
citizens for obeying her call to arms, e. g.: “ The citizens of each state 
shall be entitled to all privileges and immunities of citizens in the 
several states.” [Article IV. § 2.] “ The judicial power of the united 
states shall extend ... to controversies between citizens of differ¬ 
ent states ; between citizens of the same statef &c. [Art. III. § 2 ; see 
also Amendment XI.] No citizen of a nation was ever recognized, or 
provided for. States, as complete and sovereign political bodies, ex¬ 
isted before the federal agreement. Each state was composed of its 
citizens originally, and it has ever continued to be so. These “citizens 
of different states ” were the only people in the land possessed of 
civil and political rights. Their citizenship or allegiance has never 
been changed. No hint of transfer can be produced. 

The Transfer of Allegiance a Gross Absurdity. — How absurd 
is the new idea taught by the “ school,” that the state, in passing the 
ordinance ratifying the federal constitution, and commanding the obe¬ 
dience of her members to the federal government then, ipso facto , 
formed, alienated, in that, act and moment, the said citizens, and 
discharged them from duty to herself. To do so was to defeat her 
own purpose; for her authority over her citizens was necessary to 
secure or coerce their obedience to her new political arrangement and 
“supreme law.” Not only so, but such transfer of allegiance would 


ALL TREASON IS AGAINST THE STATE. 417 

have been a virtual dissolution of the state (the tie of allegiance, as 
has been shown, being the social compact), and the formation of a 
consolidated and homogeneous commonwealth, comprising all the 
states, — the very thing the fathers dreaded, and sought to avoid, , as 
all the records show. 

The notion of a transfer of allegiance, like that of a delegation of 
sovereignty, is an utter absurdity. Either is state suicide, which no 
presumption favors, and which the records of the country entirely 
disprove. . Delegating sovereignty (including the transfer of the citi¬ 
zens to a representative government) would be as manifest a solecism 
as delegating ownership to an agent. As in the latter case the agent 
becomes owner, so in the former the representative becomes sover¬ 
eign— both cases being alienations or abdications unknown to legal 
or constitutional history. 

Consistently with the above, we find no change in the states hinted 
at in the federating instrument, but them named and provided for 
as pre-existent entities — moral persons. 

Secondly, let Massachusetts testify. — Here, as usual, she steps 
forward as the champion of statehood. As a free, sovereign, and 
independent commonwealth, she put her mind deliberately to the 
subject, and, through her convention, she approved and adopted the 
federal constitution, declaring as follows, February 7, 1788: “The 
convention ... do, in the name and behalf of the people of the com¬ 
monwealth of Massachusetts, assent to and ratify the said constitution 
for the united states of America.” 

Her self-assertion then stood, as it has ever since done, as follows: 
She declares her citizens to be formed into the state by the social 
compact, wherein each is bound to be governed in all things by the 
voice of the said state. Her declaration is quoted only a few pages 
back, and it is hers to-day. [p. 410, supra,] 

She declares that the commonwealth so formed is absolutely sove¬ 
reign. Here are her queenly — nay, imperial words, sounding to-day; 
“The people of this commonwealth have the sole and exclusive right 
of governing themselves, as a free, sovereign, and independent state ; 
and do, and forever hereafter shall, exercise and enjoy every power, 
jurisdiction, and right, which is not, or may not hereafter be, by them 
expressly delegated to the united states, in congress assembled.” 
“ Government is instituted for the protection . . . and happiness of 
the people. . . . Therefore, they alone have an incontestable, un¬ 
alienable and indefeasible right to institute government, and to re¬ 
form, alter, or totally change the same, when their protection . . . 
and happiness require it.” [Const. Mass. Part I. articles 4, 7.] 

She declares every pow r er, vested by her in the united states, to be 

27 


418 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


“ delegated and all officials to be mere “substitutes and agents” of 
the people. [Ibid. Part. I. articles 4, 5.] 

She declares her people to be her citizens, and calls them “ subjects 
of this commonwealth” [Ibid. Part I. art. 11]; while the federal pact 
corroborates it, by calling all the people of the country “ citizens of 
different states” 

She commands her governor to assemble all her “ citizens ” and 
“ subjects,” or rather “ inhabitants ” — this being the word she uses 
— to “ repel ” “ by force of arms,” and to kill, slay, and destroy all 
such persons as shall “ attempt ” “ the destruction, invasion, detriment, 
or annoyance of this commonwealth.” She makes no exception of, 
but includes, the federal government, as I have heretofore shown. 
[Ibid. Part II., ch 2.] 

She requires, in her constitution and laws, that every officer shall 
take an oath of allegiance to her as a sovereign. Up to 1820, the 
oath was in the extended form given heretofore. In that year it was 
shortened, but not weakened, to read as follows : “ I. A. B., do solemnly 
swear that I will bear true faith and allegiance to the common¬ 
wealth of Massachusetts, and will support the constitution thereof: 
so help me God.” [Amendments 1820, art. 6; see also her law and 
oath of 1866, referred to supra , 407.] 

She declares, under the heading of “offences against the sove¬ 
reignty of this commonwealth,” that “treason,” in one of her “ citizens” 
or “ subjects,” “ shall consist only in levying war against her, or in 
adhering to her enemies, giving them aid and comfort.” [R. S. of 
Mass., ed. 1836, p. 715.] To aid any person or authority, whether 
federal or other, to coerce her with arms, would constitute the 
crime. 

And finally she declares, that “ every person who shall commit the 
crime of treason against her shall suffer death.” [Ibid.] And if on 
any one of several occasions — and especially the one occurring in 
1814 — the federal government had pushed the dispute with Massa¬ 
chusetts to an issue of arms, she would rightfully have executed any 
subject of hers who had dared to fight for the said agency, against 
his commonwealth and sovereign ! 

Vermont and Kentucky add Conclusive Proof. — These two states 
make the correctness of the foregoing completely manifest. They 
show the understanding that morally binds all the states, the people, 
and the general government, to the proposition that the allegiance of 
the citizen is due alone to his state , and that hence the only possible 
treason is a crime against the original sovereign — the commonwealth of 
people; the law of treason being their will, and the trying and pun¬ 
ishing functionaries being their instruments. 


ALL TREASON IS AGAINST THE STATE. 


419 


Vermont and Kentucky were the first states to join the federal 
union after it was first formed, the former in 1791, and the latter in 
1792; and their cases became designed, studied, and most conspicu¬ 
ous precedents, especially on the vital subjects of allegiance and 
treason. 

Let us first take the case of Vermont. —She “laid the law on” 

her people, through her convention, on January 10, 1791, as follows : 
‘ Tllis convention . . . do . . . approve of, assent to, and ratify 
the said constitution : and declare that the same shall be binding on 
us and the people of the state of Vermont for ever.” PI. Ell Deb 
338.] 

Two years after this, supposing herself to be like her sisters, a 
“ free, sovereign, and independent state,” she formed her state con¬ 
stitution, aiming, of course, to harmonize it with her federalized condi¬ 
tion. Therein she prescribes the following “ oath of allegiance to this 
state” as she calls it, to be taken by all her officers: “You do 
solemnly swear that you will be true and faithful to the state of Ver¬ 
mont.” 

This constitution, lately, if not now, extant, contains the following 
remarkable provision : “ Every person of* good character, who comes 
to settle in this state, having first taken an oath of allegiance , may 
purchase . . . real estate, and after one year’s residence shall be 
. . . entitled to all rights of a natural born subject of this state , 
except,” &c. 

So much for Vermont. Next let us note 

Kentucky’s view of Allegiance and Treason. — In 1792 she held 
a convention, through which she declared her will to be a state, and 
to become a member of the union, while about the same time con¬ 
gress passed an act admitting her — both acts taking effect, ex vi 
termini, on the first of June, 1792. 

In her constitution, adopted 17th August, 1799, and lately, if not 
now, extant, is the following official oath of allegiance : I do solemnly 
swear, that I will be faithful and true to the commonwealth of Ken¬ 
tucky, as long as I continue a citizen thereof. 

One more extract from the record of this county or province, will 
suffice : “ Treason against the commonwealth shall consist only in levy¬ 
ing war against it, or in adhering to its enemies, giving them aid and 
comfort.” 

We are now enabled plainly to see 

The Early Faith on this Vital Subject. — On the momentous occa¬ 
sion of admitting the first of the long line of new states, the land would 
have resounded with objections and protests, if there had been error 
on these vital points of allegiance and treason, but there was none. 


420 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


These new states, and the congress of states, as did all the people, 
and all their leaders and political philosophers, concurred in the view 
that there were, — 

1. No political organizations of people but states. 

2. No political rights but the rights of states. 

3. No sovereignty but that of the people of states. 

4. No citizens but citizens of states. 

5. No allegiance but allegiance to states. 

6. And no treason but that against a state. 


CHAPTER XI. 


ALL TREASON IS AGAINST THE STATE (CONTINUED). 

T HE above conclusions are supported by all the facts of history; 

by all the utterances of the fathers; and by all the provisions 
and principles of the constitution itself. The fathers who planned, 
and aided to establish, the federal system, whether acting as delegates 
to the federal or the state conventions, w’ere members, citizens, and 
subjects of the commonwealths, owing allegiance to, and bound to pre¬ 
serve, them. Hence these builders built with pre-existent materials — 
combined indestructible and absolute states into a new federal polity. 
Nothing was created, destroyed, or changed. The people, as states, 
exerted their own wills, and became “ united states ” — “ essential 
component parts” of the “new system” (as Hamilton himself de¬ 
clared), intending to exercise government themselves. Obviously, 
treason is against the people as they are organized. But let us reason 
further into the philosophy of the matter. 

The Crime is against Society. — It is obvious that treason is not 
against the instituted government; but is against society, which rules 
and protects, and is entitled to allegiance, precisely as if a king. The 
monarch in the one case, and society in the other, says: “I am the 
state; allegiance is due me, and treason is against me.” 

If not so, why did Webster say: “ Sovereignty of government is 
unknown in North America; . . . the people alone are sovereign ” 1 
[Speech of 1833.] If not so, why did Madison say : “ Each state . . . 
is considered as a sovereign body . . . only to be bound by its own 
voluntary act ” [Fed. 39]; and that the present system “ consists of 
many co-equal sovereignties ” ? [III. Ell. Deb. 381.] If not so, why did 
the Federalist, speaking the views of Hamilton and Jay, as well as 
Madison, declare that “ the federal and state governments are, in fact, 
but different agents and trustees of the people, instituted with different 
powers, and designated for different purposes ” % [Art. 46.] And why, 
finally, if it be not so, did Mr. G. T. Curtis state, as the American 
doctrine, that governments with us are only “ agents and depositaries 
of the power of the people”? [II. Hist. Const. 38.] 


422 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


Treason is against the state, then, not only according to the con¬ 
stitution and the fathers, but, as we shall see, according to natural 
reason. The bod}^ rules and protects, and is entitled to reciprocal 
duty and devotion [see pream. const. Mass, appendix D]. Hence we 
infer that true loyalty in a citizen is fidelity to his state, and that 
treason against the united states ceases to be a crime when the alleged 
act is done in defending one’s state, or when she disunites herself. 

It is not inconsistent with these principles, for the states, acting 
under the jus gentium , to force a seceder to come back to the same 
old constitution, with all its provisions and principles intact: for it 
provides for equal and self-governing united states. And if truth, 
justice, and the principles of institutional liberty, which are formu¬ 
lated in the constitution, are persistently violated, and no remedy is 
found therein, a state ought to withdraw, as one patriarchate with¬ 
drew, with God’s approval, from another, to avoid strife. [Gen. xiii.] 
They, like our states, willed to be together, and they could equally 
will to separate. Of course, withdrawal tenders an issue under the 
jus gentium , which the adhering states have as good a right to accept 
as the others to tender. [See Part I. ch. iv.] 

Naturally Disunion ends Federal Treason. — Remembering that 
the power of repeal is precisely commensurate with, and the exact op¬ 
posite of, the power to enact or ordain; and remembering that all the 
powers of the constitution are delegated by the will of superior au¬ 
thority, and hence withdrawable, natural reason and common sense 
will teach us that the crime of “treason against the united states” 
must end, as to a citizen, with his state’s withdrawal from the associa¬ 
tion, and recall of her delegations. 

We must keep it in mind that man is merged and politically lost 
in the state, and becomes subject to duty to and protection from her, 
by virtue of the social compact; as well as an integral part of the 
said state; and in his societal capacity a part of the governing author¬ 
ity. Politically, he is nothing, except in this connection. Moreover, 
the state is named in the federal pact , and recognized as one of its com 
stituents, while the man is designated as her citizen, and i 3 of course* 
a part of her. As such part, he was carried by her into the union. 
She organically survived the completion of it, abating nothing of her 
sovereign will. Being identical with said citizens, she functionally 
commands and controls them in all matters, including those of the 
federal instrument — this being her “ law laid on them,” just as the 
state constitution is, both being declared by her convention. 

Citizens had no agency in giving life or validity to the federal com¬ 
pact, or doing anything towards it, except voting for delegates, who, 
in convention, were to express the will of the state to ratify, and thereby 


ALL TREASON IS AGAINST THE STATE. (CONTINUED.) 423 


establish, the constitution, as provided by Article VII. [See supra , 
153.] 

Unquestionably, then, the treason clause comes from the wills of 
states; and a state makes or unmakes the offence at will, as to her 
own members, citizens, and subjects. 

Naturally States can Undo what they Do. — No change having 
been wrought in the state and the citizen by the federal constitution, 
the former, of course, remained free, and the union voluntary. Hence 
she could disunite herself—withdraw her delegations — and recall her 
federal agents. If the ordinance of ratification is a functional act of 
mind, an exercise of will, can she not change her mind, and the act 1 
If she made up her mind that her “defence,” “welfare,” and “the 
blessings of liberty,” would be “ promoted ” and preserved by a 
given — say a federal — arrangement; and her experience afterwards 
showed that her purpose failed, that injury resulted, and that danger 
impended; were it not absurd to say that she could not change alike 
her mind and her means 1 Surely, if by her functional action this 
being express her will through her voters, and the delegates they 
elect, to disunite herself from the federal union, “ treason against the 
united states,” and federal jurisdiction to punish it, are alike, and at 
the same moment, brought to an end. This may be called secession, 
or some other odious name, to excite popular prejudice, but the politi¬ 
cal philosophy of it will endure forever. Withdrawal is the natural 
action of an unchained state ; there is no constitutional impediment; 
and the recent amendments have not even hinted at prohibition ! 

Why has not some St. George slain the dragon 1 Why has seces¬ 
sion not been constitutionally prohibited 1 I will conjecture on this 
subject hereafter. 

But the Matter is on a still Higher Plane. — It involves, indeed, the 
highest moral considerations, as well as obedience to Heaven. With¬ 
drawal is, as to a state, the natural and functional act of a free being; 
and it is a moral duty, by a “ moral person ” — a society, endowed by 
Deity with existence, and with the instinct and right, as well as the 
duty, of self-preservation. As we have seen, God ordained society 
when He made man. And He made and gave mind for nothing, if 
not for the use and end of providing for the “ welfare ” and “ defence ” 
of the body that contains it. And naturally society or societies can 
do or undo — as we have seen — whatever their “ defence ’ and “ wel¬ 
fare ” demand. And their free moral agency necessitates their option ; 
for it would be absurd if a sentient being which Deity had made or 
caused, and intended to hold, in a manner, finally accountable, had 
not the right, and was not in duty bound, to use every power and 
faculty in self-preservation; or if such being had not the right to 


424 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


provide for its defence and welfare, by undoing an act it had mistak¬ 
enly done for that purpose, and which threatened its harm and 
destruction. 

And, viewing this society, not merely as the government (which, as 
a republic, it is), but as the heaven-commissioned custodian and 
defender — the citadel, so to speak, of the members of the society, 
their families, and their “ blessings of liberty; ” duty and honor would 
compel it to destroy, not only the federal government, but the whole 
world besides, if necessary to fulfil its sacred trust. 

It is right here that we find the highest application in all the 
moral and physical world, of the great truth that “ self-defence is the 
first law of nature.” 

The Tie that binds the Citizen to Obey. — Plainly, then, the tie of 

allegiance — the social compact — binds the citizen to obey the state’s 
federal will or mandate, and makes it treason for him to fight her and 
her united sisters; and plainly, in order that the treason-clause should 
apply to him, her act or ordinance of ratification must be in force, 
and the state in the union. 

It was the same voice — the same law-making power that laid the 
treason-clause on the member, citizen, and subject of Virginia, in 
1788, and that annulled it in 1861. On the former occasion it said : 
“ Be it ordained;” on the latter, “ Be it repealed.” The citizen that 
obeys the one has the same reason for obeying the other viz. that 
each member of the commonwealth is bound, by the all-comprehend¬ 
ing obligation of the social compact, to obey the said body. There is 
no shade of original and ultimate authority over citizens outside of 
this body. It is a republic or self-governing people ; and “No author¬ 
ity , on any pretence whatever,” can “he exercised over the people or mem¬ 
bers of this state , hut such as shall he derived from or granted hy them” 
\Supra, p. 62.] This standing declaration of New York is vital to 
each and every state in the union. It is self-government! 

The federal constitution ends the subject by considering, and 
providing for, all the people as “ citizens of different states,” i. e. as 
members, integers, and subjects. And the federal convention of 1787 
unanimously declared the “states” to be “the government”—as, 
being republics, they must have been — the so-called government 
being their agency. [See II. Curtis’s Hist. Const. 608.] 

In conclusion of these two chapters, then, I affirm that not only do 
history and philosophy show, but that the federal constitution proves 
(and is strictly consistent with the idea), that the state is the sole 
object of treason. Q. E. D. 


CHAPTER XII. 


CONCLUSION. 

W E are forced, then, to stand upon the law of our political being 
and nature, and admit that our whole system is states , and 
nothing else; that “levying war against” a state’s enemies, under 
her command, and adhering to her, giving her “ aid and comfort,” is 
always duty and not treason; and that the fathers thought that every 
citizen should and would, upon call of his commonwealth, rally to 
her flag, as against any other. 

And this is what Hamilton meant by the following, which was the 
general sentiment of that day: “ The state governments will, in all 
possible contingencies, afford complete security against invasions of 
the public liberty by national authority. In a confederacy, the people , 
without exaggeration, may be said to be entirely masters of their own 
fate.” [Federalist, 28; see also the views of Ames and Parsons, II. 
Ell. Deb. 46, 94; see also Part V. Ch.Y.] 

Why fight Facts ? — We may not like such facts and philosophy. 
But why “ wreck ourselves against necessity 1 ?” [De Stael.] Why — 
to borrow one of Carlyle’s singular expressions — “ mash our face to 
a pancake against the adamant of things ” 1 States are as separate, 
solid, and enduring as island rocks in the ocean. And we should 
cherish and defend them as the sacred treasuries of all our blessings 
— as the last refuge and citadel of freedom. Seward, after the war, 
spoke truly, wisely, and well, in saying : “ This absolute existence of 
the states which constitute the republic, is the most palpable of all 
the facts which the American statesman has to deal with. . . . Our 
federal republic exists, and henceforth and forever must exist, through 
. . . the combination of these several, free, self-existing, stubborn 
states. . . . They are living, growing, majestic trees, whose roots are 
widely spread and interlaced within the soil, and whose shade covers 
the earth.” [Speech at Auburn, October 20, 1865.] 

“ Indestructible states ” is the phrase applied, since the war, to our 
commonwealths by Chief Justice Chase [State of Texas vs. White] ; 
and it is a truth. Atoms of water do not more naturally glomerate 
into a distinct drop, than men tend to form society. All gather 


426 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


naturally around a centre of collective existence, possess a corporate 
soul ) and in that form become conscious of the instinct, the right, 
and the duty of self-preservation. 

And free states gravitate, like free men, to some common centre. 
Of course, it is where the ties of amity, neighborly good-will, sym¬ 
pathy of common origin, common design, and common expectations; 
mutual interest and confidence; and a well-founded hope of inter¬ 
state justice in the future; are all knotted or formulated into a con¬ 
ventional arrangement like the federal (or league-al V) constitution.^ 

Who Saved the States ? — In our four years’ war among the states, 
the parties were compelled to recognize, and deal with one another, 
as belligerents \ and necessarily their voluntary ties of union were 
dissolved. Some judges have wished otherwise, and so decided \ but 
assertions do not make facts. 

The elements of the states, which returned to the union, might 
have been melted and poured into unity by the victors; but Massa¬ 
chusetts, New York, Pennsylvania, Ohio, and Illinois only desired a 
union of states; and they saw that the constraint of one by the rest, 
in peace, would be to themselves a most dangerous precedent; and 
they had Henry Wilson, John A. Andrew, William H. Seward, 
Gerrit Smith, Thaddeus Stevens, Salmon P. Chase, Benjamin Wade, 
and Lyman Trumbull — to say nothing of others — watching to see 
that the respective republics, and the republic of republics, should 
receive no detriment. 

The aforesaid states and statesmen probably influenced the shaping 
of amendments XIII., XIV. and XV., so that, while the results of the 
war should be secured, absolute statehood should be preserved. 
They might have revolutionized the states into a nation, but they 
preferred the system to remain “ united states.” 

And Civil Rule and Legal Coercion yet Stand. — These amend¬ 
ments were made by the states, according to Article V. of the compact, 
as all the previous ones had been. The original instrument was left 
unchanged and unmodified; no sentence or word of it was repealed, 
even by implication; and the civil jurisdiction of the federal govern¬ 
ment was simply extended, the means of enforcement remaining the 
same. Even the right of secession was not prohibited — probably 
because it involved a vital principle of freedom; and because prohibit¬ 
ing it would have been precisely equivalent to chaining states. 

And the aforesaid commonwealths and their statesmen did not, in 
their measures of reconstruction, profess to act inside of the constitu¬ 
tion. Thaddeus Stevens said there were only two men in all congress 
who argued that those measures were constitutional. “ In all this 
business,” said he, “ we act outside of the constitution 


CONCLUSION. 


427 


Evasion of Jefferson Davis’s Trial. — It was the facts and principles 
herein set forth, and the vital importance of them to these “stub¬ 
born,” “ indestructible states,” that caused Seward, Chase, and Presi¬ 
dent Johnson to evade the trial of Davis, Lee, and the other con¬ 
federate chiefs, while pretending to desire it. Reason, silent in war, 
longed to implead “ the government ” in time of peace. Justice 
would have vindicated the defendants and their “ lost cause ” — this 
being the cause of institutional liberty — the cause of the American 
commonwealths. 

The True Sanction of the Union. — The coercive use, on the states, 
of their own men and means, by their own citizens and subjects, 
whom they elect as agents, cannot be the cohesive force of a voluntary 
union of states. Such an idea would be, as Madison said, “ visionary 
and fallacious; ” as Hamilton said, “ the maddest project ever devised; ” 
and as Randolph and others said, “ war.” The “ attraction of repul¬ 
sion,” and not of cohesion, would be illustrated by such a plan. No, 
the people collectively, as well as individually, must be “ attracted ” — 
to use the expression of John Quincy Adams in 1839 — “ by 
the magnetism of conciliated interests and kindly sympathies.” If 
they be, the union must endure. The people, collectively, being sove¬ 
reign bodies, their personal fealty is to, and their sympathy with, 
themselves. Nothing more august, dignified, potent, or heaven- 
approved, can exist as the basis and sanction of a union-government 
of republics. 

The real bond and conserving force of the association is, as it 
always has been, the plighted faith of sovereigns, resting on their sat¬ 
isfaction and sense of safety, their amity and neighborly kindness 
and their mutual interest. 

When, and by what act, did this union become involuntary — a 
chained union? When did these undeniable original feelings and 
motives change? 

Sacred Inter-State Faith is the Only Basis. —Webster could but 
say in 1819 : “ The only parties ” to it, “ originally,” “ were the thirteen 
confederated states;” and it rests solely “on compact and plighted 
faith.” And this could but be, as it really was, Webster’s dying view. 
[See App. F.; also supra , pp. 207 — 211.] 

Hold Sacred the Muniments of Liberty. — The highest use of 
constitutions and laws is to protect “ the blessings of liberty ” against 
rulers. The world’s history is mainly devoted to recounting the 
efforts of the few, by fraud and force, to control and tax the many; 
and our fathers aimed to forefend the danger, by giving to the said 
rulers only written authority, specially empowering, directing, and 
controlling them,and precluding discretion, particularly in the federal 


428 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


agency, as to which no power is valid unless expressed — all not 
expressed being retained. The terms, and truths, and principles are 
the very walls of our fort, and any giving up or compromise of a pro¬ 
vision, a principle, or a truth, which forms a part, is in the nature of 
treason as well as perjury. 

The only safety of the people’s blessings of liberty is the sacred¬ 
ness of constitutions. In the olden time, this sentiment was all-per¬ 
vading, like the atmosphere. “ The inviolate sanctity of a written 
constitution,” said Hamilton, is “the life of a republican government.” 
Many similar expressions could be quoted from Washington, Jefferson, 
Jackson, and others. 

Our most dangerous perverters are federal functionaries, who 
readily swear to do, and not to do, as the procuration directs, but soon 
ignore their solemn adjuration, and forget that — as Webster says — 
“ the constitution, to preserve itself, lays its hand on individual duty 
and conscience; ” and who claim and exercise all the power they wish 
for, and suppose to be popular, whether warranted by the compact or 
not. 

At all times and in every possible form, they assert that “ we are a 
nation,” assuming every point needed to make up that theory. “ Of 
the making of books ” to establish it without proof, “ there is no end ” 
— the evident aim being to assert the states out of, and a nation into, 
existence. Even the federal supreme court have asserted — contrary 
to all history — that a change was made from a union of states to 
another system [9 Wheaton, 1], and that the federal government 
(including said court) is sovereign — with coercive pow T er, of course — 
over the very states that are the real government, and that established 
the federal governmental agency , of which the federal supreme court is 
a part [2 Otto, 542]. How can the temple endure, if its very high- 
priests undermine it? 

Title by Assertion. — If such things can be done, why not bring 
into political and legal science a new title to authority — the title by 
assertion ? Why not acquire property in the same way ? And why, 
since we can alter the constitution by assertion, should we trouble 
ourselves hereafter with that clumsy contrivance, Article V. ? 

Why continue to punish as crime, when done to property, that 
which rulers do as to authority'? In what is the perjured thief of 
“powers,” better than the starving stealer of a loaf? 

Anathema. — A constitution is a rule of faith and practice, as 
essential to the temporal welfare as the Bible is to the eternal. The 
curse which the latter denounces against heretical teachings should 
be hurled against those who pervert our sacred fundamental laws: 
“ If any man teach any other gospel [or constitution] to you, let him 
be accursed.” 


CONCLUSION. 


429 


Let us Acknowledge our Sovereigns. —If the words, figures, and 
meanings of the federal pact are unchanged, and if the amendments 
have in no wise varied the plan of our polity, or reduced the grade 
of the republics, why not henceforth recognize our allegiance to our 
commonwealths; implicitly obey their home and their federal com¬ 
mands ; and render constant faith and undying devotion to their in¬ 
tegrity, honor, dignity, and sovereign will 1 

The Palladium of all our Blessings. — Concentred in, and based 
on, the commonwealth, will be found all there is of patriotism, of col¬ 
lective character, of public opinion, and of moral force in government, 
as well as voting power. The republic is founded on the human 
heart. Its institutions are shaped by man to his own liking; are in¬ 
tended solely for his good ; and are nothing but defences of his “ bless¬ 
ings of liberty.” An expression of Massachusetts, in January, 1776, 
is one of her glories now : “ As the happiness of the people is the sole 
end of government, so the consent [i. e. the will] is the only foundation 
of it, in the reason, morality, and natural fitness of things.” In one’s 
home, family, kindred, friends, neighbors, and fellow-citizens, and 
their belongings, and in the institutions that surround, bind together, 
and protect them, is found the personal happiness, which is the great 
object of life, and the sole purpose of instituting government. These 
institutions are the vital defences of home, and hearth, and heart. 
The love of them is the cement and coherence of the state — that 
repository of all blessings, and citadel and last refuge of freedom. 
The federal system is the outer wall, or bulwark, to protect states — 
“a dyke,” to use Fisher Ames’s figure — “to keep out the destroying 
flood.” 

The people have chosen to be states, and why should they be 
undone 1 During one hundred years, these heaven-devised societies 
— take for instance Massachusetts, New York, Virginia, and Geor¬ 
gia — have exemplified and vindicated the capacity of man for self- 
government ; each, as a complete republic, achieving a distinguished, 
a brilliant success. Each knew and felt that her u sovereignty was ” 
as Samuel Adams said, “ the palladium of the private and personal 
rights of the citizen.” Why should the monster, centralism, be 
allowed to destroy these precious entities ? 

The rightful central power is that which the commonwealths, for 
agential purposes, have established, the forces of which spring from, 
and are adjusted to, their own autonomy. The central sun of their 
system is their creation, and it draws its only light and heat from 
their inherent stores. Nothing of that central authority is original, 
or its own. And if even the “ Bird of the broad and sweeping wing, 
whose home is high in heaven,” were to be deprived, in mid-air, of all 




430 


CITIZENSHIP, ALLEGIANCE, AND TREASON. 


strength but his own, his further history would be short, ignominious, 
and as follows: “ tumbled, smashed, rotted ! ” 

Plain Common Sense as to Union. — There is a naturalness of rea¬ 
son and sense, which should influence our minds on this great subject. 
It is found exemplified in the thought and conduct of business men as 
to business affairs. Man — the object of all politics and all law — ever 
tends to society, and seeks therein self-interest, safety, friendship, mu¬ 
tuality, justice and righteousness. Societies desire and tend to federate 
with precisely the same motives and ends. Why should we not deal 
with unions, constitutions of government, and the administration of 
such affairs, just as matters of arrangement and transaction are dealt 
with in business circles; being, of course, deliberate, and duly guided 
by political science, ethics, law and equity 1 Business men in legiti¬ 
mate transactions have precisely the above motives. That great man, 
John Quincy Adams, foresaw that “terms of union,” or “articles of 
union”—as the convention of 1787 called them — being of human 
origin, must require change; and he inculcated preservation of amity 
among the peoples, as well as a desire to associate, and a willingness 
to be mutual and just; so that when a given union should fail to 
answer its ends, they would be minded to recur to precedents, and 
“ form a more perfect union.” Three unions of all the states have 
been made; and several more are possible. And it would be alike 
foolish, flagitious, and futile, to trammel the authority, the material 
interests, and the heartfelt sentiments of the peoples, with changeless 
forms — forms that might be blessings, A. D. 1880, but curses after¬ 
wards. Though beneficent originally, they may be “ perverted from 
their purposes,” and become destructive of liberty and the people’s 
rights. 

Man — the Sole Object of Institutions. — The state contains all 
there is of republicanism in the land. Politically man is merged and 
lost therein. He finds and enjoys there all his “ blessings of liberty”; 
and, if he is safe “under his own vine and fig-tree,” he little cares 
whether the state, or the association of states, is large or small. And 
the state herself, if safe, is as happy united with four, as with forty, 
peers. Witness Delaware, and Rhode Island, and the original thirteen, 
with their 3,000,000 of people. Size is not bliss, and nought of time 
is above change. Ages ago there existed between the orbits of Mars 
and Jupiter a primary planet which was shattered; but the fragments 
yet shine in their paths of glory, adding their smaller voices to the 
harmony of the spheres; and they are still as capable of working out 
the design of the great Creator, and promoting the happiness of their 
inhabitants, as they would be if they remained the original unity pro¬ 
jected from His Almighty Hand ! 


CONCLUSION. 


431 


Yes, the sole object of institutions is the happiness of man; and we 
should preserve these safeguards of his blessings of liberty in, or, if 
needs be, out of, the union. The greatest of our dangers are our rulers 
and politicians. Their perversions and excesses, if continued, will 
sooner or later destroy American institutional freedom. The warning 
of Burke is the Alpha and Omega of my book. Would that it were 
engraved on every American hearth-stone, and impressed on every 
American heart: “This change from an immediate state of procu¬ 
ration and delegation to a course of acting as from original power, 
is the way in which all the popular magistracies of the world have 
been perverted from their purposes! ” 




APPENDIX A. 


No 1. 

THE UNION OF STATES. 

EXTRACTS FROM CONTEMPORANEOUS JOURNALS AND MAGAZINES TO SHOW- 

HOW THE ADVOCATES PRESENTED THE UNION OF STATES, AND WHAT 

THE PEOPLE MUST HAVE THOUGHT IT WAS, AND INTENDED IT TO BE. 

Extracts from the Massachusetts Centinel, from Oct. 3 , 1787 , to Nov. 19 , 1787 . 

For many years I have gathered extracts from editorials, communications, 
political essays, speeches, state papers, and acts of the American common¬ 
wealths, contemporaneous with, and referring to, the forming of our associa¬ 
tion of states, with a view of reproducing for the sons the ideas and impressions 
tliat actuated the sires in forming our federal institutions. 

The contending theories as to the character of our union are as follows: 

1. That of the Massachusetts school — thus set forth by Webster: “The 
union ... is the association of the people, under a constitution of govern¬ 
ment ; . . . therein they establish a distribution of their powers between this 
their general government, and their several state governments.” So far as this 
nation has thus expressed its will, “ so far state sovereignty is effectually con¬ 
trolled.” The Philadelphia convention of 1866 improved on this, by saying 
that “the government” has “absolute supremacy,” and rightfully holds “the 
states in allegiance.” 

2. In opposition to the above theory of “the Massachusetts school,” the 
constitution itself repeatedly characterizes the polity it provides for as a union 
of states — “the united states”—the instrument calling itself “the constitu¬ 
tion of [i. e. belonging to] the united states.” 

It will be observed that the extracts all take for granted the facts — that 
coequal states are acting; that they are the highest earthly authority; that the 
constitution and government spring from their concurring wills, and must be 
and remain subordinate to them ; that they, as republics, are aiming to govern 
themselves through the instrumentality of governmental agencies j and finally, 
that they form an association of sovereign states. 

The punctuation and italicizing are those of the original. 

28 



434 


THE UNION OF STATES. 


[Massachusetts Centinel, Oct. 3, 1787.] 

“ It is evident that all the necessary powers of this federal government, are 
fully consistent with every species of right and liberty of the people.” 

Ibid. “ The inhabitants of the city and liberties of Philadelphia, have peti¬ 
tioned the legislature of Pennsylvania, ‘ That the American constitution, pro¬ 
posed by the federal convention, may be adopted as speedily as possible by the 
state of Pennsylvania, in the manner recommended by the resolution of the 
convention.’ ” [It was “ the state ” and not “ a section or district of people ” 
or “group of voters ” that was to adopt.] 

Ibid., Oct. 6, 1787. ‘ All duties, imposts and excises are uniform through 

the United States; likewise the rule of naturalization and the laws on bank¬ 
ruptcies. The citizens of each state shall be entitled to the privileges and 
immunities of citizens in the several states.” [In those days all “ the people 
of the United States” were thought to be citizens of the states, as they are 
called by the federal constitution. See Art. III. § 2 ; Art. IY. § 2.] 

Ibid. From a New York paper of Sept. 29, 1787: “ Yesterday congress 
resolved unanimously, eleven states being present, that the new constitution 
is to be transmitted to the legislatures of the several states, in order to be sub¬ 
mitted to a convention of delegates to be chosen by the people, agreeably to 
the mode prescribed by the convention.” From the Philadelphia papers of 
Sept. 26, it is derived that “in each of the States of New Jersey and Dela¬ 
ware, the federal government has been received with universal satisfaction.” 

Ibid. “We are informed that in New York the constitution promises to be 
highly popular with the citizens.” 

Ibid. “ The supreme executive of this commonwealth received from con¬ 
gress the constitution.” The paper goes on to say that it is to be sent to “the 
legislature, which is to call a convention for the purpose of adopting the same.” 

Ibid., Oct. 10, 1787. From a Philadelphia paper of Sept. 29th: 

“ The motion in the general assembly, by George Clymer, that a convention 
be called to consider the proposed federal constitution, was adopted by 43 to 
19 — the 19 seceded, leaving the house without quorum. Next day one of the 
minority was brought in by force, by persons unknown — was fined 5s — on 
attempt to leave there were cries to ‘ stop him,’ but finally the house permitted 
him to leave — he and the rest of the minority thenceforward stayed away — 
and the house finally appointed the 1st Tuesday in November for choosing 
delegates, and the last Tuesday of same month, for the meeting of the conven¬ 
tion at the State House in Philadelphia.” [This not only indicates the viru¬ 
lence of the opposition, but shows the entire independence of the contest over 
the plan in Pennsylvania.] 

Ibid. “A late sensible and judicious writer,” says, this constitution “is 
calculated to answer the exigencies of the times, and to unite in one federal 
body the interests of all.” “ Why should members of one and the same family 
clash, when the interests of the family are the same.” 

Ibid., Oct. 13,1787. “From a Portsmouth (N. H.) paper of Oct. 2 

“ In this metropolis ” “ all ranks are highly animated with the pleasing hope 
that this glorious structure, supported by 13 pillars will speedily be completed.” 
[It was a common figure to call the states pillars upon which the federal super¬ 
structure was to be reared. The fathers never contemplated that the federal 
system should be based on any ground of its own. It was to have and to hold 
nothing of original, but all of derivative and delegative right. It was to be an 
agent and trustee: so said the fathers and the states habitually. “ The states” 



APPENDIX A. NO. 1. 


435 


are “ the essential component parts of the system” was Hamilton’s phrase, and 
it was the view of all. They were contemplated and habitually spoken of as the 
actors in making the system. They were to go into it, as complete political 
bodies, and exist therein unchanged in name and character; and to be the 
sole actors and sources of power. The reader will observe that in these 
extracts, constant reference is made to the action of the states as political 
bodies.] 

Ibid., Oct. 20, 1787. Extract from speech of John Hancock, governor, 
dated Council Chamber, Oct. 17, 1787 : He said the general convention had 
done what they, were appointed for, and “reported to congress £ a constitution 
for the united states of America.’ I have received the same, and directed the 
secretary to lay it, together with the letter accompanying it, before the legisla¬ 
ture, that measures may be adopted for calling a convention of this common¬ 
wealth, to take the same into consideration. . . . The characters of the gentle¬ 
men who have compiled this system, are so truly respectable, and the object of 
their deliberations so vastly important, that I conceive every mark of attention 
will be paid to the report. Their unanimity in deciding those questions wherein 
the general prosperity of the nation is so deeply involved, and the complicated 
rights of the states, and of each separate state, are so intimately concerned, is 
very remarkable : and I persuade myself that the delegates of this state, when 
assembled in convention, will be able to discern that which will tend to the 
future happiness and security of all the people in this extensive country.” 

Ibid. “Erom the Pennsylvania Gazette — important queries . . . 3. 

Whether the constitution framed by the late convention ought not to be adopted 
by the several states, as the only means of extricating the people from the dis¬ 
tresses they at present labor under. ... 4. Whether, if the constitution now 
offered should be refused, there is any probability of obtaining another, more 
generally acceptable.” 

Ibid. “ Erom the very handsome manner in which our worthy governor 
speaks of the new constitution, and from the observations of several legislators 
yesterday, we anticipate an early day being fixed by the general court for the 
meeting of our convention — that this state may have the great honor and sin¬ 
gular happiness of being the first to adopt a system second to none in the 
world.” 

The Massachusetts Centinel, of Oct. 24, 1787, publishes with high encomia , 
the speech of Hon. James Wilson, (one of the delegates of Pennsylvania 
in the federal convention,) at the state-house in Philadelphia. It is copied 
from the Pennsylvania Herald of October 10. The following are extracts: His 
speech is professedly to answer “ objections that have been raised.” Before 
“ refuting the charges which are alleged,” he thus “ discriminates between the 
state constitutions, and the constitution of the united states.” 

“ When the people established the powers of legislation under their separate 
governments, they invested their representatives with every right and authority 
which they did not, in explicit terms, reserve, and therefore upon every ques¬ 
tion respecting the jurisdiction of the house of assembly, if the frame of gov¬ 
ernment is silent, the jurisdiction is efficient and complete. But in delegating 
federal powers, another criterion was necessarily introduced; and the congres¬ 
sional authority is to be collected, not from tacit implication, but from the posi¬ 
tive grant expressed in the instrument of union. Hence it is evident, that in 
the former case, everything which is not reserved is given, but in the latter, 
the reverse of the proposition prevails, and everything which is not given is re¬ 
served. This distinction will furnish an answer to those who think the omis¬ 
sion of a bill of rights a defect in the proposed constitution. For it would have 
been superfluous and absurd, to have stipulated with a federal body of our own 


436 


THE UNION OF STATES. 


creation, that we should enjoy those privileges of which we are not di¬ 
vested, either by the intention or the act that has brought that body into 
existence.” 

In reply to the objection that the rights of trial by jury in civil cases, was 
abolished or endangered, in the states, he said: “ Let it be remembered, then, 
that the business of the federal convention was not local but general; not 
limited to the views and establishment of a single state, but co-extensive with 
the continent, and comprehending the views and establishments of thirteen in¬ 
dependent sovereignties.” [In other words trial by jury, habeas corpus, free¬ 
dom of the press, owning and enjoying property, religious freedom, marrying, 
voting, etc., etc., “relating only to personal rights ” — to use the words of 
another great Pennsylvania statesman, Tench Coxe — “could not be mentioned 
in a contract among sovereign states.” How absurd to suppose that up to the 
time these organized commonwealths were compacting, all these personal rights 
and privileges were unestablished and insecure.] 

As to the objection that the “ constitution tolerates a standing army in time 
of peace,” he says he knows no nation that does not “ maintain the appearance 
of strength in a season of the most profound tranquillity. Nor is it a novelty 
with us, for under the present articles of confederation congress certainly pos¬ 
sesses the reprobated power, and the exercise of that power is proved at this 
moment by her cantonments along the banks of the Ohio.” 

Speaking of attacks on the senate, he says : “ When we reflect how various 
are the laws, commerce, habits, population and extent of the confederated states, 
this evidence of mutual confidence and accommodation, ought rather to com¬ 
mand a generous applause, than to excite jealousy and reproach.” 

Next he meets the objection that the “ federal constitution is not only calcu¬ 
lated, but designedly framed to reduce the state governments to mere corporations, 
and eventually to annihilate them. The objectors do not seem to comprehend 
the extent of the term corporation. It is commonly applied to petty associa¬ 
tions of a few individuals, but in its enlarged sense it comprehends the govern¬ 
ment of Pennsylvania, the existing union of the states; and even this projected 
system is nothing more than a formal act of incorporation. But upon what 
pretence can it be alleged that it was designed to annihilate the state govern¬ 
ments, for I will undertake to prove that upon their existence depends the ex¬ 
istence of the federal plan.” He then proceeds to show how the president, 
senate and house of representatives, are to be appointed. The president is to 
be chosen by electors to be chosen “ in such manner as the legislature of each 
state may direct” — no legislature, no electors, no president. The senators 
are “two senators from each state chosen by the legislature” —no legislature, 
no senate. The house of representatives is composed of members chosen every 
two years “ by the people of the several states, and the electors in each state ” 
are those that elect members of the second branch of the state legislature. 
“Unless, therefore, there is a state legislature, that qualification cannot be 
ascertained, and the popular branch of the federal government, must likewise 
be extinct. From this view, it is evidently absurd to suppose that the anni¬ 
hilation of the separate governments will result from their union.” 

[Tench Coxe explained this very point as follows : “ As under the old, so 
under the new federal constitution, the thirteen united states were not intended 
to be, and really are not, consolidated in such a manner as to absorb or destroy 
the sovereignties of the several states.”] 

“ The power of direct taxation has likewise been treated as an improper 
delegation to the federal government; but when we consider it as the duty 
of that body to provide for the national safety, to support the dignity of the 
union, and to discharge the debts contracted upon the collective faith of the 
states, for their common benefit, it must be acknowledged that those upon 


APPENDIX A. NO. 1. 


437 


whom such important obligations are imposed, ought in justice and in policy 
to possess every means requisite for a faithful performance of their trust. 55 

Speaking of a law of the state of Pennsylvania, he says, “ as it was the imbe¬ 
cility of the present confederation which gave rise to the funding law, that law 
must naturally expire when a competent and energetic federal system shall be 
substituted. 55 

[He elsewhere speaks of the new system as “a confederation of states, 55 
with additional powers , an executive, a judiciary , a second branch of the 
legislature , and a power to regulate commerce, not possessed by the first fed¬ 
eration.] 

In conclusion, speaking in general terms of the opposition to the plan, he 
considers it to originate with those who are interested in those offices, judicial 
appointments, and collectors of revenues which are transformed [transferred? ] 
from the individual to the aggregate sovereignty of the states. 

Says the editor, in referring to this speech, “the quintessence of all that can 
be objected to the American constitution, is in the address of the Pennsylvania 
seceders, and a complete answer to them, and other anti-federalists can be found 
in the address of Mr. Wilson.” 

[Mr. Curtis, the author of the so-called history of the constitution, affects 
great partiality for James Wilson, and shows it in quoting from him. One evi¬ 
dence of it is, that while quoting about 12 or 14 large pages, he leaves out all 
the above, and many similar passages of Mr. W.’s great efforts in the conven¬ 
tion of Pennsylvania, wishing apparently to show that Mr. W. favored consoli¬ 
dation, while, in reality, he was trying to defend the new system from even the 
suspicion of it.] 

Ibid., Oct. 24, 1787. 

[From the New Haven Gazette, Oct. 17.] 

“ Yesterday the general assembly passed' a resolve appointing, Monday, the 
12th day of November next, for the several towns to choose delegates to a 
state convention, to be holden at Hartford, first Thursday of January next to 
consider the doings of the late federal convention at Philadelphia — the dele¬ 
gates to be chosen, as the representatives to the general assembly are.” 

Ibid. 


[From the New York Packet, Oct. 12.] 

“ The inhabitants of Burlington county, and district Carlisle, New Jersey, 
have voted to instruct their general-assembly-men to call a convention for 
adopting the federal constitution as soon as possible. 55 

Ibid., Oct. 27, 1787. In the Massachusetts house of representatives there 
was a debate in reference to calling a convention. Said Mr. Davies, of Boston, 
“ The people will consider this point, with all the other proceedings, when in 
state convention. ... To say that the people have no right to do this, if it 
shall appear to them that the old confederation is inadequate to all the pur¬ 
poses of national government, is just saying that we had no right to oppose 
the British power when it became oppressive, and that we are all now in one 
great rebellion. 55 [He was speaking in reference to the alleged indissoluble¬ 
ness of the old confederation.] 

“ The probability is that the proposed government will meet the wishes of 
almost all the people of almost every state in the union.” 

Judge Parsons, of Newburyport, on the same occasion, said: “As the peo¬ 
ple alone were the proper and immediate judges of the system proposed by the 


438 


THE UNION OF STATES. 


federal convention, he hoped there was not a person in that house who would 
attempt an abortion of so noble a conception.” 

Ibid. Contains a statement that the elections in Pennsylvania show that 
“a large majority of the people of that state are strongly attached to the new 
federal constitution.” 

Again, “ Accounts from Maryland show that the federal government will be 
adopted almost unanimously in that state.” 


[Ibid. Oct. 31, 1787.] 

Poplicola [very able and clear,] replying to objections, says : “We are not to 
forget that these very officers [of the federation] are the creatures of our own 
choice, amenable to us, and to be re-called at our pleasure.” 

“ The gentleman [an old whig] has observed that people are unwilling to part 
with the power they have got; it is for this reason I do not believe the inhabi¬ 
tants of this country will ever lose sight of the essential privilege of calling 
their public servants to account.” 

“It is a known truth that in the constitution [proposed], every privilege is 
left, which is not expressly taken away from the people.” 

Ibid., same date. “A correspondent remarks that the same or similar objec¬ 
tions to those raised against the new constitution were offered against the con¬ 
federation. It was to be an irreversible decree, like the laws of the Medes and 
Persians. Experience has proved the fallacy of such an idea, and those who 
object to the American constitution on this score do it in mere wantonness or 
from calculating the tyrannical views of those who may chance to govern us by 
their own propensities to domination and lust of power.” 

Ibid., Nov. 3, 1787. From the Middlesex Gazette. “ There can be no 
good, free and secure government but where every man is under the coercive 
power of the law. . . . Under this system [the federal constitution] no man can 
be above law. Rulers must govern according to law; or ... be chastised. 
The people have power to compel their rulers to do their duty.” 

Ibid. The editor says with reference to the judiciary power in this federal 
government: “ How are disputes between a state and citizens of another state, 
and between citizens of different states to be decided? ” 

Ibid. The editor publishes a letter of Hon. Elbridge Gerry as containing 
•“ opinions on a subject of first importance to the country,” from one of the great 
men. Gerry says : “ As the convention was called for the ‘sole and express pur¬ 
pose of revising the articles of confederation; and reporting to congress, and the 
several legislatures such alterations and provisions as shall render the federal 
constitution adequate to the exigencies of government, and the preservation of 
the union,’ I did not conceive that these powers extended to the formation of the 
plan proposed; but the convention being of a different opinion , I acquiesced in 
it, being fully convinced that to preserve the union, an efficient government was 
indispensably necessary, and that it would be difficult to make proper amend¬ 
ments to the articles of confederation.” He says further : “ The constitution 
proposed has few if any federal features, but is rather a system of national gov¬ 
ernment,” and suggests as questions necessarily arising: “ 1st. Whether there 
shall be dissolution of the federal government. 2. Whether the several state 
governments shall be so altered as in effect to be dissolved ; and 3 whether in 
lieu of the federal and state governments, the national constitution now pro¬ 
posed shall be substituted without amendment.” [See I. Elliott’s Debates, 
492.] [Gerry, like Martin, Henry, Lowndes and others, was trying to defeat 
the constitution by charging it with what the whole people were averse to_ 


APPENDIX A. NO. 1. 


439 


consolidation. And, strange to say, these charges, which would have defeated 
it but for decisive refutation, are now predicated of it, as its real meaning, by 
Dane, Story, Webster and Curtis ! They are met and refuted herein.] 

Ibid. “ The late continental convention have recommended calling state 
conventions for the sole purpose of adopting or rejecting in toto their plan of 
government.” [The general idea was “ that each state should adopt or reject 
in toto, and not attempt to amend—this being likely to produce confusion and 
delay. ] r 

Ibid., Nov. 7, 1787, a correspondent writes: “Besides the securities of the 
people arising out of the federal government, they are guarded by their state con¬ 
stitutions, and by the nature of things in the respective states .” The article goes 
on to enumerate the classes of state officers—governor, legislators, judges, etc. 
— to be “ chosen within each state, without any possible interference of the fed¬ 
eral government. The separate states will also choose all the members of the 
legislative and executive branches of the united states. The people at large in 
each state will choose their federal representatives, and . . . the electors of the 
president and vice-president of the union. And the legislatures of the states 
will elect the senate,” etc. Can it be, then, — the article continues — that “ a 
majority of the representatives” will “ betray their country? ” “ Will a ma¬ 

jority of the senate, each of whom will be chosen by the legislature of a free, 
sovereign and independent state, . . . destroy our liberties ? ” 

[Massachusetts Centinel, Nov. 10, 1871.] 

“President Sullivan” has summoned “the general court of New Hampshire” 
<c to consider on business of the highest importance—the appointment of a con¬ 
vention ” to adopt or reject the federal constitution. 

Ibid., contains an able and statesmanlike letter, from which I copy the follow¬ 
ing. After saying there is no religious test for office under “ the new consti¬ 
tution,” and mentioning other features, it says: “The old federal constitution 
contained many of the same things, which from error or disingenuousness are 
urged against the new one. Neither of them has a bill of rights, nor does either 
notice the liberty of the press, because they are already provided for by the 
state constitutions ; and, relating only to personal rights, they could not be men¬ 
tioned in a contract among sovereign states. The people will remain, under the 
proposed constitution, the fountain of power and honor. The president, the sen¬ 
ate, and house of representatives will be the channels through which the stream 
will flow—but it will flow from the people, and from them only: Every office, 
religious, civil and military, will be either their immediate gift, or it will come 
from them through the hands of their servants. And this will be firmly guaran¬ 
teed to them under the state constitutions, which they respectively approve, for 
they cannot be royal forms [of government,] cannot be aristocratic, but must be 
republican. 

“ Nothing can be more plain to the eye of reason, or more true, than that 
the safety of the people is amply provided for in the federal constitution, from 
the restraints imposed on the president — those imposed on the senate — and 
from the nature of the house of representatives — and that of the security for 
national safety and happiness, from every part of the federal government. 

“There is*no spirit of arrogance in the new federal constitution. It ad¬ 
dresses us with becoming modesty, admitting that it may contain errors. Let 
us, fellow-citizens, give it a trial; and when experience has taught its mistakes, 

THE PEOPLE WHOM IT PRESERVES ABSOLUTELY ALL-POWERFUL, Can reform 

them.” [This letter is from Tench Coxe, of Pennsylvania, one of the great 
statesmen and political writers of that period. Note, that the security for 


440 


THE UNION OF STATES. 


national safety and happiness “ was to be attained by a contract among sove¬ 
reign states.” And the people, as such “ sovereign states,” were to be 
“ preserved all-powerful.” This letter was published everywhere, and never 
controverted as an exposition.] 

Ibid., Nov. 14, 1787. A correspondent speaks of the “new states’ constitu¬ 
tion.” 

Ibid., Nov. 17, 1787. An extract is published from the Pennsylvania 
Journal of Nov. 3d, to the etfect that the house of assembly of New Jersey, 
after declaring that “the commissioners from this state have reported a consti¬ 
tution for the future government of the united states, agreed upon ” in the 
convention of states; and further declaring it “ to be the earnest wish of the good 
people of this state,” that there be assembled “a convention within the same, 
for the purpose of deliberating and determining on said constitution” — unani¬ 
mously passed resolutions in favor of a convention, fixing time, etc. 

Ibid., Nov. 21, 1787. Twenty-three formidable objections to the new federal 
plan, are urged by au officer of the late Continental army, substantially as 
follows: 

1. It is not merely, as it ought to be, a confederation of states, but a govern¬ 
ment of individuals. 

2. The powers of congress extend to’the lives, liberties and property of every 
citizen. 

3. The sovereignty of the different states is ipso facto destroyed in its most 
essential parts. 

4. What remains of it, will make dissensions between state and congress, 
and terminate in,the ruin of one or the other. 

5. “The union of the states,” will be destroyed in a struggle, or their sove¬ 
reignty swallowed up by an aristocracy, because if two equal sovereign powers 
command the citizens’ purses, they will struggle for the spoils, and the weakest 
will yield to the strongest. 

6. Congress, possessing these great powers, the liberties of the states and 
people are not secured by bill of rights. 

7. The sovereignty of the states is not expressly reserved, the form and not 
the substance of their government being guaranteed to them by express words. 
[How much this wretched quibble about the “ form ,” but not the substance 
of a republican government being guarantied, is like the constitutional exposi¬ 
tions of the Massachusetts school.] 

8. Trial by jury is abolished in civil cases. 

9. The liberty of the press is not secured, and congress can destroy it. 

10. Congress can keep a standing army in time of peace. 

In the 13th, he finds fault with representation; in the 14th, with the senate; 
in the 15th, he says the president is an elective king, and has command of the 
army; in the 17th, he complains of want of rotation in office ; in the 18th, that 
anuual elections are abolished; in the 19th, that congress can fix time, place 
and manner of elections. 

In the 21st he says the militia is to be commanded by congress and that 
peace men may be compelled to bear arms. In the 22d he fears the government 
will be expensive, the judiciary part particularly. In the 23d he concludes that 
the new plan of government partakes of monarchy and aristocracy. 

Ibid. “ The general assembly of Delaware ” has “ provided for a conven¬ 
tion to consider the proposed plan of government.” 

“ Five states have agreed ” to conventions for the purpose. 

Ibid., Nov. 24, 1787. “New Haven, Nov. 15. Virginia has directed a 
convention to meet next May, with powers not only to accept or reject, but to 
amend the new constitution.” 


APPENDIX A. NO. 1. 


441 


“ It is very evident that should the arts, lies and misrepresentations of the 
enemies to a federal system so far delude the good people of the states as to 
reject the new constitution, all government will be at an end. And what then 
will become of the state constitutions ? ” 

Ibid., Nov. 28, 1787. 

An able contributor shows that as the English constitution was unwritten 
and English governmental powers somewhat undefined, the English people “ in¬ 
sisted on an expressed bill of rights”—an “express confirmation of those 
parts of their constitution which former monarchs had denied or violated.” 
“ If we [the people of Massachusetts] had not a state constitution already 
declared on paper, and if we were now in the same circumstances we were in, 
when we seceded from Britain, and before we had ascertained and declared all 
our rights, it might be more necessary for us to do it now, when we are to 
form a new federal compact. But agreeably to the theory of the original con¬ 
tract, ... we assembled in a state convention eight years since, and then 
plainly distinguished, agreed to, and published, a bill of rights, and form of 
government for this commonwealth. I now undertake to say that we part 
with few or none of these rights by accepting the new federal constitution • 
that where we part with any, it is in exchange for others that are national, and 
fully expressed, and that some of those rights, ascertained in the state constitu¬ 
tion, are even repeated in that which is offered by the federal convention. . . . 
The first section in the federal form, will help our eye-sight to see that we re¬ 
tain all our rights which we have not expressly relinquished to the union. 
That section declares that all legislative powers herein given (i. e., given in the 
new constitution) shall be vested in congress, etc. The legislative powers which 
are not given therein, are surely not in congress; and if not in congress, are 
retained by the several states and secured by their several constitutions. 

“ The opposers of the new government charged that ‘ the liberty of the press 
is not provided for.’ But the real question is, where is it taken away ? The 
several state constitutions already protect the liberty of the press, and no 
legislative power is given to congress to restrict that liberty. . . . Congress has. 
no legislative powers but what are given them by the constitution; they there¬ 
fore can never restrict the liberty of the press.” “ So,” he proceeded to say, 
“with trial by jury, which it is objected the new government does not protect.” 

[Some of the expressions of this writer being identical with certain words 
and phrases common in the pretended interpretations of the Massachusetts 
school, it may be instructive to criticise them here. These expressions assume, 
and indeed assert, that some part of the people’s “ rights ” were “ given up,” 
“parted with,” “relinquished,” “surrendered,” etc., etc.; that is to say, alien¬ 
ated. This is the germ of that idea which grows rapidly into the “ govern¬ 
ment’s” “right of self-preservation,” and its “absolute supremacy.” It is 
almost needless to say that such expressions are sheer fallacies, though it is 
likely that few of the utterers know it. The compact provides for the “delega¬ 
tion ” of “ powers,” and not for the “ surrender ” of “ rights; ” and there is 
no word in the instrument indicating, or even hinting at, such alienation. The 
constitutional words “ grant,” “ vest ” and “ delegate ” mean confided to agents 
and trustees for the behoof of the owners. “ The people,” who are organized 
republics, and have the unlimited and inalienable right to govern themselves, 
cannot attend to it personally, and, therefore, they do it through “ servants,” 
“agents,” and “trustees.” These are the very names by which the fathers 
designated the federal functionaries, and the purely vicarious capacity of these 
functionaries was ever kept in view. 

Even a small child ought to see that if “ the people ” “ surrender ” any 
“right” to the government, it was the “right” to govern them; and when 
this “right” is “given up,” the people are under a despotism, as subjects 


442 


THE UNION OF STATES. 


and slaves, "having committed political suicide. A republic becomes no repub¬ 
lic, when it loses the absolute right of self-government, a right which, like 
honor and virtue is indivisible and inalienable.] 


[Massachusetts Centinel, Nov. 28, 1787.] 

An able writer under the signature of Valerius , says: It is objected to the new 
constitution, that it is deficient in a bill of rights. This objection might have had 
the greatest weight in a government merely national — as, in this case, there 
would have been no intermediate checks between the governing power and the 
people, over whom the constitution was intended to operate. But the form of 
government now proposed, is, by no means, of this sort. It is a federal govern¬ 
ment in every point of view, and is predicated, in every part of it, upon the idea 
of subordinate constitutions being in actual operation. When we inquire, there¬ 
fore, where we are to look for that personal security inseparable from the very 
idea of freedom, we are only to cast our eye on the respective constitutions, and 
on the principles upon which they are established, and the difficulty will be im¬ 
mediately resolved. Had there been no governments in existence, limited in 
their powers to their several districts, there would have been need of articles 
defining and explaining those rights, of which every individual feels himself pos¬ 
sessed, and which are as firmly secured to him, as if they were formally prefixed 
to the new' constitution, in the same manner that they are so fully and explicitly 
stated in our several state constitutions. 

“ When the convention was in session, they were to form a constitution suited 
as near as possible not only to the habits and dispositions of the people at large, 
but to the governments in operation. The difficulty was not, in what way the 
rights and privileges of the people could be secured to them — it would have 
been absurd to have spent even a day in the contemplation of this object, for 
these rights and privileges were fully and effectually secured already. They saw 
in the constitution of every state the strongest provisions for the rights of the 
subjects that ever were yet committed to paper or parchment in any country, or 
in any situation. Indeed no spot on earth is found but in America, in which 
such, or any precautions, were expressed to guarantee to each individual the 
rights of person and conscience, which, in this country, are secured, and will be 
forever inalienable, whether delineated in the preamble to the federal constitu¬ 
tion or not. 

“ If the convention had only to select, for the federal head, such powers as were 
necessary for the protection and safety of the whole, as was really the case, how 
strange would it have been for them, to have formed a provision in a bill of 
rights to secure what is already so fully established. The liberties of the Ho¬ 
mans, Greeks, and English, have been continued through a series of years, even 
without the use of the press, which I conceive to be the greatest security of all 
others. Now will any man say that congress, under the new constitution, will 
have a single power to limit the operation of this essential privilege ? and, if 
they have, in what passage is such a power expressed ? We have declared in 
this state, that the liberty of the press is an indispensable right of the people. 
Can the congress alienate this right ? The moment they attempt it, the new 
constitution would be annihilated, and the question would be put on the issue of 
force. Our state constitution declared that each member of society is possessed 
of certain natural rights, privileges, and immunities. Does the federal constitu¬ 
tion say otherwise? No; it is set up merely to confirm them. 

[No more accurate, clear, and forcible statement could be made. Comment 
would weaken or obscure it. Why have not the Storys, Websters, and Cur¬ 
tises, reproduced these writings ?] 

Ibid. In a Richmond paper of Oct. 27th, it is stated that the Virginia 


APPENDIX A. NO. 1. 


443 


assembly “ unanimously resolved that the new constitution be submitted to a 
convention of the people for their full and free investigation and discussion ,” 
the convention to meet on the 4th Monday in May. 

Ibid. The paper says the citizens of Newburyport are so well pleased with 
Rufus King’s conduct “in congress and in the convention of states,” that they 
have elected him their first delegate to the state convention. 

Ibid., Dec. 5,1787. Prom the Connecticut Courant is copied a criticism on 
Hon. E. Gerry’s letter. “ . . . The federal legislature can take cognizance only 
of national questions and interests, and for this purpose 5 or 10 honest and wise 
men chosen from each state—men of previous experience in state legislation— 
will be more competent than a hundred. . . . The same qualifications that ena¬ 
ble you to vote for state representatives, give you a federal voice. . . . The 
proposed plan, he [Mr. Gerry] tells us, involves these questions — ‘whether 
the several state governments shall be so altered as in effect to be dissolved ? 
Whether in lieu of the state governments, the national constitution now pro¬ 
posed shall be substituted ? ’ I wish for sagacity to see on what these questions 
are founded. No alteration in the state governments is even proposed, out they 
are to remain identically the same that they now are. Some powers are to be 
given into the hands of your federal representatives, but these powers are all in 
their nature general, such as must be exercised by the whole, or not at all, and 
such as are absolutely necessary. . . . Why are we told of the dissolution of 
our state governments, when by this plan they are indissolubly linked. They 
must stand or fall, live or die together. The national legislature consists of two 
"houses, a senate and house of representatives. The senate is to be chosen by 
the assemblies of the particular states, so that if the assemblies are dissolved, the 
senate dissolves with them. The national representatives are to be chosen by 
the same electors, and under the same qualifications, as choose the state repre¬ 
sentatives, so that if the state representation be dissolved, the national represen¬ 
tation is gone of course. State representation and government is the very basis 
of the congressional power proposed.” 

Ibid. Northampton, in “town meeting,” instructed her delegates, Caleb 
Strong and Benjamin Sheldon: “ We have delegated you to meet in state con¬ 
vention ... for the purpose of adopting or rejecting the reported constitution 
of the united states of America.” The document goes on to show the impor¬ 
tance of the occasion: “ The civil dignity of the states, of the united states, and 
perhaps of humanity,” are involved, “ and we wish you patiently to hear, and 
attentively to examine every argument that shall be offered for and against its 
adoption.” We want “an equal, energetic federal government.” We want 
“ the dignity and welfare of the union, as well as of Massachusetts ” promoted. 
While “tenacious of the rights and privileges of the people, be not afraid to 
delegate to the federal government such powers as are absolutely necessary for 
the national honor and happiness.” 

Ibid. “News from Pennsylvania shows large majority of convention of the 
state in favor of the constitution.” 

Ibid., Dec. 8, 1787. “Let the thirteen states, bound together in a strict 
and indissoluble union, concur in erecting one great American system, superior 
to trans-Atlantic force and influence, and able to dictate the terms of the con¬ 
nection between the old and the new world.” 

Ibid. News from Georgia, that the house of assembly have recommended a 
state convention, “ for taking under consideration the new federal constitution.” 
News from Philadelphia shows the meeting and organization of the state con¬ 
vention. 

The editor reports the statement of a correspondent that John Jay (though 


444 


THE UNION OF STATES. 


a good and able man,) though at first for, is now against the constitution, 
calls it a deep and wicked conspiracy. In New York it is known by the name 
of gilded trap. Elsewhere it is said or intimated that the state of New York is 
likely to reject the constitution. 

Ibid. After giving the names of those elected to the convention from Boston 
and other towns, the editor speaks of circumstances which “ presage a happy 
issue of the deliberations of that great Areopagus which is to determine 
whether this state will assent to and ratify the constitution,” etc. 

[Massachusetts Centinel, Dec. 10, 1787.] 

Extract from speech of James Wilson in Pennsylvania convention: 

“In all governments there must be a power from which there is no appeal, 
absolute, supreme, uncontrollable. ... It remains and flourishes with the 
people. It is a power paramount to every constitution, inalienable in its 
nature, and indefinite in its extent. Eor I insist, if there are errors in govern¬ 
ment, the people have the right not only to correct and amend them, but like¬ 
wise totally change and reject its form; and under the operation of that right 
they can never be wretched beyond retrieve, unless they are wanting to them¬ 
selves. ... In a democracy [such as ours] the supreme power is inherent in 
the people, and is either exercised by themselves or their representatives.” 

The editor says : “ This speech which the Roman orator would not blush to 
own, ran through an impression of several thousands in a few days at Philadel¬ 
phia, at one shilling each.” 

[Massachusetts Centinel, Dec. 18, 1787.] 

A very able reply — copied from the Connecticut Courant — to Col. George 
Mason’s objections to the federal constitution, contains the following: 

“ There is no declaration of rights, [says Col. M.] Bills of rights were intro¬ 
duced in England when its kings claimed all power and jurisdiction, and w'ere 
considered by them as grants to the people. They are insignificant, since 
government is considered as originating from the people, and all the power 
government now has, is a grant from the people. The constitution they estab¬ 
lish, with powers limited and defined, becomes now to the legislator and the 
magistrate, what originally a bill of rights was to the people. To have inserted 
in this constitution a bill of rights for the states, would suppose them to derive 
and hold their rights from the federal government, when the reverse is the case.” 

“ There is no declaration of any kind to 'preserve the liberty of the press, [says 
Col. M.] Nor is liberty of conscience, of matrimony, or of burial of the dead 
mentioned. It is enough that congress have no power to prohibit either, and 
can have no temptation. This objection is answered in that the states have all 
the power originally, and congress have only what the states grant them.” 

[The Centinel calls the article a pertinent critique. It is very clear and 
cogent, and it must be from Ellsworth, Sherman, Law, or some leading man 
of Connecticut.] 

Ibid., Dec. 22, 1787. The editor, speaking of danger to the liberty of the 
press says: “As all the powers congress are to possess, will be the grant of 
the people, we can have nothing to fear from that body —■ if this privilege is 
ever destroyed, it must be by the people.” 

Ibid., Dec. 26, 1787, contains part of a speech of Hon. Jas. Wilson in the 
Pennsylvania convention. He reasons that “ a bill of rights was not neces¬ 
sary, because congress only have such powers as are granted .” And if the 
people should undertake to frame a bill of rights, “ what they happen to omit. 


APPENDIX A. NO. 1. 


445 


might be presumed to be given.” “A bill of rights would have been im¬ 
properly annexed to the federal plan, and for this plain reason, that it would 
imply that whatever is not expressed was given, which is not the principle of 
the proposed constitution.” This principle he declares as underscored above. 
The italics are in the original. 

[In consequence of the fears aroused by the Webst.erian dogmas, which 
appeared in those days in the guise of charges, made by the enemies of the 
constitution, for the purpose of defeating it, and which nearly accomplished 
the purpose; the people unfortunately insisted on a bill of rights, which to 
allay their apprehensions, and to guard against the possibility of consolidation, 
(or a nationalization of the states,) was appended to the constitution as amend¬ 
ments, [see amendments, 1 to 8 inclusive]: and now our politicians, so-called 
statesmen, and many profound lawyers, call the federal (or league-al) constitu¬ 
tion, “ the charter of our liberties ” — never dreaming that these provisions 
are the sacred institutes of Freedom herself; and are fundamental and vital 
in the very organic laws of all the states. Neither a soul of the fathers, nor 
a state, ever thought of a transfer, or a signing away, of these great essen¬ 
tials, for it would have been political suicide; but the said amendments were 
intended as limitations — “to prevent an undue administration of the federal 
government,” as Massachusetts expressed it through her ratifying conven¬ 
tion.] 

Ibid. “ The convention of the state of Georgia were authorized to consider 
said report, letter, and resolutions [of the federal convention] and to reject 
or adopt any part or the whole thereof.” 

Ibid. Copies an extract from the Pennsylvania Gazette , which I will give 
as published to show the ideas and impressions of that day: 

“ The first pillar of a great federal superstructure raised.” 

“Delaware. — The deputies of the state convention met at Dover, on 
Monday, the 3d, and a house being formed, they elected James Latimer, 
Esq., President. On Thursday they ratified the federal constitution by an 
unanimous vote, and on Friday every memeer signed the ratification as 
follows: 

“‘We the deputies of the people of Delaware state in convention met, having 
taken into our serious consideration, the federal constitution, proposed and 
agreed upon by the deputies of the united states, in a general convention, held 
at the city of Philadelphia, on the 17th day of September, in the year of our 
Lord, one thousand seven hundred and eighty-seven, have approved of, as¬ 
sented to, and confirmed, and by these presents, do, in virtue of the power 
and authority to us given for that purpose, for, and in behalf of ourselves and 
constituents, fully, freely and entirely approve of, assent to, ratify and 
CONFIRM the said Constitution.’ ” 

“ Second Pillar raised. On Wednesday, the 12th inst., in the state con¬ 
vention of Pennsylvania, the Hon. Mr. McKean, agreeably to notice given 
on a previous day, recurred to his motion made at the opening of the con¬ 
vention, viz: Resolved, That this convention do adopt and ratify the 
constitution of federal government, as agreed upon by the federal convention 
at Philadelphia, on the 17th day of September, 1787. A lengthy debate took 
place, which did not close until 12 o’clock at night, when the question being 
put, the numbers were: for the motion, 44; against it, 22. The next day, 
proclamation of the same was publicly made, and was ratified by the people, 
with those expressions of applause which the sons of freedom alone know how 
and when to give.” [The vote on ratification was 46 to 23.] 

“The third pillar raised. A letter dated-at New York, Dec. 20, 1787, 
received in town yesterday, has the following paragraph, which may be con- 


446 


THE UNION OF STATES. 


sidered as authentic, viz: ‘The new constitution will undoubtedly be 
adopted — Delaware, Pennsylvania and New Jersey, have ratified and 
confirmed it.’ ” 

Ibid., Jan. 2, 1788. The editor “hopes before midsummer to give the glad 
tidings that not only nine but twelve of the great pillars of the federal super¬ 
structure are raised, and the whole completed. Laus Deo ! ” 

Ibid. Speaks of certain mischiefs that “ have been realized by the American 
states from the unqualified sovereignty of the individual governments.” 

[Note that then as now, sovereignty and government , were often confounded. 
No one ever denied that the people of the state were sovereign, and that they, 
as such bodies, were ordaining the constitution, and creating the government, 
which was to be administered by their own subjects. The so-called “ sove¬ 
reignty of the state,” that, from its assumptions, excited much jealousy and 
opposition, was the state government — a mere creature or instrument of the 
real sovereignty. Moreover, it was often called “ the state” *It is the fre¬ 
quent occurrence of these and other confusions of terms, that atford such a 
fine opening for the tricks of exposition, so characteristic of the political 
writings of our country.] 

Ibid., Jan. 2, 1788. In a very able article, which may have been written 
by Elbridge Gerry, lie quotes Wilson, of Pennsylvania, as saying that “ if the 
objection ” [that the new plan consolidates the states] “ is a just objection , it 
will be strongly against the system .” [The writer quotes the phrase “ con¬ 
solidation of our union” — which Gen. Washington, “by unanimous order of 
the convention,” stated in his letter to congress accompanying the federal plan, 
to be the object of the convention; and comments severely upon it. Unques¬ 
tionably the word “ consolidation ” in this phrase, meant more solid, firm, and 
permanent, for the constitution was made, as the preamble says, “ to form a 
more perfect union,” i. e., a more perfect union of states than the other was ; 
and “consolidation” can have no meaning incompatible with the complete 
integrity of the states. This very phrase, as well as the one quoted from the 
preamble, imply that the new union was to be of the same character as the old 
one — i. e. a federation of states. It can hardly escape the observation of the 
intelligent reader, that in all these extracts, states , and not fractions of a 
nation, are the actors, and the exclusive sources of ordaining power. The 
dupes of the Massachusetts school should weigh the fact.] 

Ibid., Jan. 6, 1788. “The convention of New Jersey was composed of 
accomplished civilians, able judges, experienced generals, and honest farmers.” 
As “ the ground work of its proceedings,” it “ resolved that the federal con¬ 
stitution be read by sections,” [each being fully debated until the whole had 
been examined,] “ upon which the general question shall be taken; whether 
this convention, in the name and behalf of this state, do ratify and confirm 
the said constitution.” 

Ibid., Jan. 9, 1788. No. III. of an exceedingly able series of papers by 
“ republican federalist,” contains the following — after recognizing conventions 
as the organs of states for constitutional changes: “ Of all compacts, a consti¬ 
tution or frame of government, is the most solemn and important, and should be 
strictly adhered to. The object of it is the preservation of that property which 
every individual in the community has in his life , liberty, and estate .” [It is 
the great mass of these property rights, as well as each individual right, no 
matter how minute and insignificant, that the state was organized to conserve; 
and, to enable the state to do this, and to protect them in so doing, the federal 
constitution was built by them, as an outer wall, with towers and bastiolis; 
and it is manned by them for that purpose.] 


APPENDIX A. NO. 1. 


447 


Ibid. “ The accession of our sister state, Connecticut, to the new and effect¬ 
ual plan of confederation, is a matter of real exultation to the friends of honesty 
and peace” The editor goes on to say, that if certain virtues, [which he enu¬ 
merates] “ have not forsaken the commonwealth, the convention must adopt 
the proposed constitution.” 

Eisher Ames, in the Massachusetts convention, is reported to have said: 

“ The people cannot exercise the powers of government in person, but, by 
their servants, they govern; they do not renounce their power, they do not 
sacrifice their rights; they become the true sovereigns of the country, when 
they delegate that power, which they cannot use themselves, to their trus¬ 
tees.” 

Ibid., Jan. 16,1788. In this number is the following wood-cut. The hand 
erecting Massachusetts is probably intended for the Hand of Providence. 



Ibid. “ A vessel arrived at Cape Ann, after a short passage from Georgia, 
confirms the pleasing intelligence, announced in our last, that that state has 
unanimously ratified the federal constitution. This is a fifth pillar added 
to the glorious fabrick. May Massachusetts rear the sixth.” [Georgia was 
the 4th, Connecticut the 5 th.] 

“ On Monday morning, the bells of this metropolis were rung on account of 
the pleasing intelligence that the state of Connecticut had added a fourth 

PILLAR to the GRAND REPUBLICAN SUPERSTRUCTURE —the FEDERAL CONSTI¬ 
TUTION. . . . The accession of our sister state Connecticut to the new and 
effectual plan of confederation etc. ... If all sense of justice , honor, and public 
faith , and every principle of regard to the peace and happiness of the united 
states, have not forsaken this commonwealth, the convention must adopt the 
proposed constitution.” 

[The reader will please keep in mind that the italics, etc., are all in the 
original.] 

Ibid., Jan. 19, 1788: 

“THE WISH. 

“ I wish you all may live in peace, 

May see the public discords cease, 

Each state with speedy resolution, 

Adopt the federal constitution, 

Mechanic arts and trade revive. 

And agriculture spread and thrive ; 

And peace and plenty hand in hand, 

Once more may travel through the land,” etc. 















































448 


THE UNION OF STATES. 


Ibid., Jan.- 23, 1788. In convention Jan. 16. — Mr. Cabot said, the 
senate “is a representation of the sovereignty of the individual states” — “its 
members are delegated by the several state legislatures.” 

Said Mr. Parsons on the same occasion, “ the sovereignty of the states is 
represented in the senate.” He repeated it in a subsequent debate. 

Hon. Mr. White said: “ We ought to be jealous of our rulers; ” “ he 
would not trust a flock of Moseses, even.” 

Ibid. The editor says : “ The Hon. convention have now come to the 8th 
section of the constitution, which specifies the powers with which congress 
shall be invested.” 

[These extracts partake of the nature of contemporaneous expositions, and 
they directly contradict Story and Webster, as to the formation and nature or 
our polity. If the intelligent reader will carefully peruse all these extracts 
from the leading journals of Massachusetts, as well as the debates of the 
Massachusetts convention [II. Ell. Deb.] he will lose confidence in the dicta 
of the great expounder, and the great commentator. In those days, no nation 
was thought of, but such as might be made by the self-association of sovereign 
states. The constitution was their “ supreme law,” and the government was 
their creation and agency. The persons administering this government were 
to be the citizens and subjects of the states, elected by the states, and owing 
allegiance to the states. These assertions are susceptible of easy proof.] 

[Massachusetts Centinel, Jan. 26, 1788.] 

“Hampden” suggests, among other amendments, that the words, as to the 
jurisdiction of the federal courts: “ between a state and citizens of another 
state,” etc., be stricken out, because, “ laying a state liable to be sued, robs it 
of all its sovereignty; and, in this case, may lay the several states liable to be 
sued for their public securities.” 

[Massachusetts was, par excellence, the stickler for the preservation of the 
absolute sovereignty of a state in the “ union of states.” In ratifying, she 
insisted on the amendment, that “all powers not expressly delegated” are 
“ reserved to the several states,” which was finally adopted, and it was her 
leading men, notably Gov. James Sullivan, Gov. John Hancock, and others, 
and the legislature, that initiated the amendment, depriving the federal govern¬ 
ment of even judicial coercion of a state. See amendment XI.] 

Ibid., Feb. 2, 1788. Hon. Mr. Sedgwick said, in the convention of Massa¬ 
chusetts, that “ if he believed the adoption of the proposed constitution would 
interfere with the state legislatures, he would be the last to vote for it.” [In 
II. Ell. Deb. 77, a member quoted him as saying that “if he thought the con¬ 
stitution consolidated the union of the states, he would be the last man to vote 
for it.”] 

Gov. Bowdoin, in speaking of the objection that personal rights and state 
rights were endangered, said: 

“ With regard to rights, the whole constitution is a declaration of rights, 
which primarily and principally respect the general government intended to be 
formed by it. The rights of particular states and private citizens not being the 
object or subject of the constitution, are only incidentally mentioned. In re¬ 
gard to the former, it would require a volume to describe them, as they extend 
to every subject of legislation not included in the powers vested in congress; 
and in regard to tKe latter, as all government is founded on the relinquishment 
of personal rights in a certain degree, there was a clear impropriety in being 
very particular about them.” 

And Judge Parsons said the same thing in the same debate, viz : “The fed- 


APPENDIX A. NO. 1. 


449 


\ 


eral constitution establishes a government of the last description,” [that is, 
a government of purely delegated powers,] “and, in this case, the people 
divest themselves of nothing.” [This simply means that the people govern 
themselves; and is equivalent to the statement of Fisher Ames, quoted 
heretofore.] 

Ibid. The editor, in noticing a decisive vote in the convention, says: “ The 
Massachusettensian pillar is reared ; but as the arch which will connect it with 
those heretofore erected, is not yet sprung, we cannot yet announce its estab¬ 
lishment, as one of the supporters of the federal superstructure.” 

Ibid, contains a paraphrase of one of iEsop’s fables signed “ Pat,” as fol¬ 
lows : 


THE BULLS AND THE LION. 
a fable 

Recommended to the serious consideration of the opposers of the new constitution. 

Safe, on the Lion’s old domain, 

The bulls enjoy the flowery plain: 

To conquer, oft the lion tried, 

But sorely pushed on every side — 

The monarch soon was taught to yield — 

The bulls united kept the field. 

With grief we read the dismal tale, 

That art succeeds where strength does fail. 

New schemes and trickings Leo tries 
To make the sturdy bulls his prize; 

And, by his jealous hints, and fears, 

Sets all together by the ears. 

His engines are not set in vain, 

Suspicion agitates each brain ; 

They soon grow fearful of each other, 

Each scorns and shuns his faithful brother, 

Each feels his consequence his pride ; 

They doubt each other — they divide. 

For want of friendship’s powerful stay 
The bulls become an easy prey; 

The Lion sees his conquest done, 

And slays the 13 one by one. 

Thus we (it must appear to all), 

United stand — divided fall. 


Ibid., Feb. 9, 1788, contains the following in large capitals: “Ratifica¬ 
tion of the federal constitution by Massachusetts. 

“ The yeas and nays in the convention were as follows : 

“ Yeas — 

“ His Excellency, John Hancock, Esq., president.” [Then follow the rest — 
footing up yeas 187 —nays 108.] 

The same number contains an account of a jubilant procession, in which is 
the inevitable federal ship drawn by thirteen horses. Thirteen guns were tired, 
one for each sister. 

[The same paper reproduces the wood-cut described heretofore, with Massa¬ 
chusetts erect and her arch sprung. The cut is preceded by the words : “ The 
grand federal edifice ; ” and followed by the announcement that “the con¬ 
vention of this commonwealth, on Wednesday, 5 o’clock p. m., assented to, 
and, on Thursday, ratified the constitution.”] And in the editor’s “ Casta- 
lian fount ” is an ode, and a “ wreath is fixed on Massachusetts’ head ” for rati- 


29 



450 


THE UNION OF STATES. 


fying. The day is called “ the glorious and ever-memorable 6th of February.” 
One verse of the ode is as follows: 

“And soon a rival day shall shine ; 

The task New Hampshire will be thine, 

To give it equal fame; 

Another pillar, raised by thee, 

Will fill New England’s sons with glee, 

And crown thy finished name.” 

The next number, February 13, contains another row of pillars with a hand 
from a cloud [Providence ?] raising New Hampshire. 

It also contains a clever dialogue between a federalist and his neighbor, in 
which the former says : “ The constitution, in the main, is a good one, and far 
better than 13 states could have been expected to make. I hope it will be well 
administered — am determined to be a good subject, until I find the contrary, 
and then I will take the best apparent method of redress.” 

“ These jarring states to bind in union’s band ” is a fine of another federal 
lyric. 

Ibid., Feb. 26,1788. It is announced that Georgia unanimously ratified the 
federal constitution. “ Georgia is a very rising state, possessing an extensive 
territory, and is a great acquisition to the new confederacy.” 

Ibid., Feb. 20, 1788. “Some ideas,” says a Hartford (Ct.) correspondent, 
“ may be formed, whether the proposed constitution annihilates the sove¬ 
reignty or respectability of the several states, from the following list of the 
convention of this state. In it, for ratification, were two governors, one 
lieutenant-governor, six assistants, four judges of the supreme court, etc.” 

Ibid., March 1st. In this number, the device of six federal pillars — the 
seventh about rising, is followed by “ a new song, for federal mechanics,” by 
Hdn. Fras. Hopkinson. One of the verses is as follows : 

“ Up ! up with the rafters, each frame is a state, 

How nobly they rise, their span too how great; 

From the North to the South, o’er the whole they extend, 

And rest on the walls, while the walls they defend ; 

For our roof we will raise, and our song still shall be, 

United as states, and as citizens free.” 

s Ibid., March 5,1788. This number contains a spirited addition to patriotic 
poetry, thejast verse of which is: 

“ So here I end my federal song, 

Composed of thirteen verses, 

May agriculture flourish long, 

And commerce fill our purses.” 

Yankee doodle, etc. 

Ibid., March 12, 1788. “The landholder,” No. 10, addresses the citizens 
of New Hampshire to show why, to preserve the safety and rights of the people 
of the state, said state should join the federation. “ If there be any one state, 
more interested than the others, in the adoption of this system, it is New 
Hampshire. . . . When the hour for a permanent connection between the states 
is past, the teeth of the lion will be again made bare; and you must either be 
devoured, or become his jackal to hunt for prey in the other states.” 

In No. 11, speaking of the advantage of revenue laws, he says — “if you 
now form such a political connection with the other states, as will entitle you 
to a just share in that revenue they raise on commerce,” etc. 


APPENDIX A. NO. 1. 


451 


Ibid., March 19. 1788: “ A letter from Gen. Washington to a gentleman 
in this town [Boston] says, that from his information from various parts of the 
state, there is every prospect of the constitution being ratified by Virginia. 5 ’ 
[Note, that it is “ by Virginia 55 and not by the fraction of a nation. 55 ] 

“ The states of Massachusetts, Connecticut, New Jersey, Pennsylvania, Dela¬ 
ware and Georgia, have ratified the constitution.” [“ The states ” — not prov¬ 
inces or counties.] 

Ibid., March 22: A letter from Gen. Washington says, the adoption by Mas¬ 
sachusetts “will be influential in obtaining a favorable determination in the 
states ” where it is yet pending. “No one can say what will be its fate here,” 
but “ I have no doubt of its being accepted.” 

“The assembly of Rhode Island has refused ” “to call a convention for tak¬ 
ing the federal constitution into consideration.” 

Ibid., April 30,1788 : Poetry addressed to the people of Virginia New Year’s 
day, 1788, contains the following verse: 

“ Numbers vast will own the plan, 

That secures the rights of man, 

Gives the states their destined place, 

High amidst the human race. ” 

Ibid., May 10 : “ We have the best authority for asserting that the state of 
Georgia has ceded 50,000,000 acres to the united states, when the new consti¬ 
tution is in force.” 

Ibid., May 26, 1788 : “Nothing further from South Carolina yet.” “Vir¬ 
ginia convention meets in a few days.” “Little doubt is had that New Hamp¬ 
shire will ratify in a few days.” 

Extract from letter from leading character in South Carolina, May 1, 1788 : 

“I rejoice in the establishment, as far as it depends on your state, of the 
federal constitution.” 

Ibid., June 7, 1788 : . . . 

“We hope to-day to announce the eighth pillar of the federal edifice ” — “ the 
ratification of South Carolina.” 

“ Yesterday the honorable legislature, agreeably to the constitution [of Mas¬ 
sachusetts] made choice of the following gentlemen as delegates to represent 
this commonwealth in the congress of the united states: Adams, Gorham, Sedg¬ 
wick, Otis, Thacher.” 

Ibid., June 11, 1788 : 

Announces accession of South Carolina as the “ eighth pillar ” of “ the grand 
federal superstructure.” 

A gentleman of Virginia writes to a friend in Boston:. “ The federal consti¬ 
tution will be adopted by us. The reception and discussion in your state have 
removed much prejudice.” 

Ibid., June 21, 1788 : 

“A gentleman of the first distinction at New York,” writes “the acces¬ 
sion of Virginia to the confederation, ceases to.be a matter of doubt, and we 
are daily expecting to hear that the ninth pillar is raised.” 

Ibid., June 25, 1788: _ . 

In this number the federal edifice is reproduced with nine pillars up, and the 
tenth rising, — without a name, because it was uncertain which would be the 
next ratifier. . J 

The seventh and characterizing article — ornamentally printed forms the 
frame or border of the picture. 


452 


THE UNION OF STATES. 


The editor then proceeds to say : “ We felicitate our readers on the acces¬ 
sion to the confederation of the state of New Hampshire, not only because it 



completes the number of states necessary for the establishment of the constitu¬ 
tion, but because it is a frontier , a neighboring , and to us really a sister state. 
It is now one of the pillars of the great national dome.” 



































































APPENDIX A. NO. 1. 


453 


Ibid., July 2, 1788 : 

The editor thinks the governor of Rhode Island is about to convene the 
legislature upon the subject of calling a convention to consider the federal 
plan. “ The weight in the federal senate, of Rhode Island, will be as great 
as that of the largest state. To preserve the proper balance of power in the 
national government, it will be expedient that Rhode Island, as well as Ver¬ 
mont , should accede to the new confederation .” This extract is published in 
the Worcester Spy of July 10, 1788, as from a letter from a gentleman in New 
York. 

The same number contains a song, sung in the grand procession at Ports¬ 
mouth, in honor of ratification. 

The following is the 

2d verse. 

“ Nine federal states politically joined 

With glorious rays our hemisphere adorn ; 

As splendid stars in amity combined, 

Rise the auspicious harbingers of mom.” 

3d verse. 

“ Hail radiant constellation,” etc. 

4th verse. 

“ Confederate justice here shall poise 
Her equal balance,” etc. 

CHORUS. 

“ In rapturous lays, 

Your voices raise, 

Columbia’s song, 

In accents strong, 

Shall echo to your joys, and dwell on every tongue.” 

Ibid., July 5th: 

Contains a very able paper, addressed to the convention of New York, which 
repeatedly speaks of “ the new confederacy ” that is being formed. 

And the same “ grand federal edifice” is pictorially represented with the 
" 10 th pillar ” — Virginia. 

[Massachusetts Centinel, July 12, 1787.] 

In reference to the rejection, or, rather, to the postponement of the ratifica¬ 
tion of the constitution by North Carolina, and other hindrances, which some 
people seemed to think discouraging, the editor says: “ In time of war, the in¬ 
strument for uniting the states was not accepted by the states for some years 
after it was submitted. This being the case, it was hardly to be expected that 
a similar instrument would, in a time of leisure and peace, be completed in a 
quarter of the time. A year hath not yet expired.” 

Ibid., July 16, 1788. 

“ In our next, we hope to announce the erection of the eleventh pillar in 
support of the new roof in the accession to the confederation of the state of 
New York.” 

An account is given of “the new roof or grand federal edifice ,” in the federal 
procession at Philadelphia, 4th inst.: “ The dome supported by 13 Corinthian 
columns ” — “ ten columns complete, three left unfinished ” — “ on the pedes¬ 
tals, the initials of the 13 American states.” 


454 


THE UNION OF STATES. 


“ In the evening, the grand edifice, with the 10 states now in union , was 
brought back,” etc. 

Ibid., Aug. 2, 1788. 

The editor announces the news “just arrived” of the ratification of the 
federal constitution by “ the delegates of the people of the state of New 
York.” [The capitals are his.] 

The editor then proceeds to make his picture again — this time with eleven 
pillars, the last one being labelled N. York. 

“Redeunt saturnla regna. 

On the erection of the eleventh pillar of the great national dome, we beg 
leave most sincerely to felicitate our dear country.” 



The last pillar is intended for Rhode Island, who was then holding herself 
aloof, with “ absolute sovereignty,” — to use Mr. George T. Curtis’ admission, 
— but politically, morally, and financially, much disordered. 

“ Eleven stars in quick succession rise, 

Eleven columns strike our wondering eyes, 

Soon o’er the whole shall swell the beauteous dome, 

Columbia’s boast and freedom’s hallowed home.” 

The following extracts are from the 

MASSACHUSETTS SPY, OR THE WORCESTER GAZETTE. 

This paper had been suspended during the Shays rebellion, and its publication 
was resumed with No. 783, Vol. XVII., April 3, 1788. 

In this number of April 3, the printer tells the public, that “ thanks to our 
present legislature,” this paper is “at length restored to its constitutional 
liberty,” “ after a suspension of two years.” “ Heaven grant that the freedom 
of the press, on which depends the freedom of the people, may in the united 
states be ever guarded with a watchful eye, and defended from shackles of 
every form and shape, until the final trump is played .” 

A paragraph in the same number, shows that even the negroes of Massachu¬ 
setts understood the distinctness of the states. One of them was tried for 
theft in some tribunal of their own, and the sentence was : “ Fourteen tripe on 
he necked back, tirt.een for united tates — one for brack company.” 

Ibid., April 10, 1788. 

The editor says: “Delegates are to be elected (in North Carolina) to meet 
in convention first Monday in March, to deliberate and determine on the new 



























































APPENDIX A. NO. 1. 


455 


federal constitution, and if approved of by them, to ratify the same, on behalf 
of that state.” 

Extract from the account of the proceedings of the legislature : “The senate 
has not concurred, with the house, in restoring to the rights of citizenship, 
Shays, Day, and others.” 

Extract from a letter of John Adams to John Jay, Dec. 16, 1787, ‘'as all 
the great principles necessary to order, liberty and safety, are respected in it, 
... I confess I hope to hear of its adoption by all the states.” [Not by the 
nation.] 

Ibid., June 12, 1788. 

Extract from a North Carolina letter, dated May 14, 1788 : “I venture to 
predict that the constitution will be adopted by a respectable majority of this 
state, for our convention will never be so mad as to vote themselves out of the 
union , and think of standing upon their own bottom a distinct nation, sur¬ 
rounded by powerful and confederated states.” 

[Nevertheless, North Carolina did, on August 1, 1788, reject the constitu¬ 
tion by a vote, in convention, of 188 to 88, making it known, however, that 
she would accede when the amendments, which Massachusetts had proposed 
for the preservation of state integrity, should be adopted. Thereafter, to wit, 
on Nov. 21, 1789, feeling assured of the amendments, she held a convention 
and ratified.] 

Ibid., June 19, 1788. 

“Philadelphia, May 28. A correspondent, who desires the adoption of the 
constitution by every state, observes that the state of Georgia has granted 
30,000,000 acres of land to the new confederacy , provided the adoption of nine 
states should take place — a tract four times as large as old Massachusetts , 
which at $-§ per acre will sink $20,000,000 — double the sum of unredeemed 
Continental loan office certificates.” 

The writer speaks of the above as a “ tribute of respect to the new confed¬ 
eracy .” 

Ibid., July 10, 1788, is published a song, sung on the occasion of a proces¬ 
sion at Portsmouth, at the time of celebrating the adoption of the constitution: 

1st verse. 

“ It comes ! it comes ! high-raise the song, 

The bright procession moves along, 

From pole to pole resound the nine, 

And distant worlds the chorus join.” 

Ibid., July 17, 1788. “In congress, July 2, 1788. The state of New 
Hampshire, having ratified the constitution, . . . and transmitted to congress 
. . . the same . . . the president reminded congress that this was the ninth 
ratification. . . . Whereupon . . . ordered, that the ratification, etc., be re¬ 
ferred to a committee, to examine and report an act for putting the said consti¬ 
tution into operation, in pursuance of the resolution of the late federal conven- 
tion.” 

Extract from a letter from a member of the convention at Richmond, to his 
friend in Boston, dated June 25: “I have now to congratulate you on the 
accession of Virginia to the new government; the final vote was taken this 
day, about 3 o’clock p. m. It was 89 to 79. A motion for previous amend¬ 
ment was negatived by 88 to 80. The form of ratification is prefixed by a 
declaration that all power, etc., (but I send you a copy).” He then speaks of 
a “ discussion of twenty-four days, in which every clause of the plan was 
weighed and debated.” 


456 


THE UNION OE STATES. 


Ibid., Oct. 2, 1788. In this number, a well-written paper, signed “Alfred,’’ 
“on the new federal government,” sajs: “It requires no greater share of 
sagacity than the world gives us credit for, to foresee that thirteen or more 
different states, possessing separate sovereignty and independence, will very 
soon, as their numbers multiply, and their opulence increases, engage in civil 
broils and distressing contentions.” lie afterward speaks of the federal sys¬ 
tem as “a form of government which astonishes the political schools of Europe, 
and which, with a few amendments, will bestow peace and political security to 
the many millions for whose felicity the states have adopted it.” 

Ibid., Nov. 13, 1788. In the general court of Massachusetts, Novem¬ 
ber 1, “ the committee on the organization of the new government,” whose 
duty it was to investigate and report upon the mode in which the state, and the 
people thereof, were to perform their constitutional functions in the new 
system. 

The matter was reported on as follows in substance; these recommendations 
to be provided for by law of the state : 

1. That the two houses, by joint ballot, choose the electors for President and 
Vice-President. 

2. That the senators be chosen by the two houses, each having a negative 
on the other. 

3. That “ the commonwealth ” be “divided into eight districts, and that the 
inhabitants of each should be authorized to choose one representative to 
congress.” 

The above shows that old Massachusetts contemplated acting in the federal 
system solely as a state — an independent sovereign; her officers, pro hac vice y 
being delegates, representatives, and, as she called them in her constitution, 
“ the subjects of this state.” The federal pact itself, calls them citizens of the 
state. She was to choose from among her own citizens and subjects, who owed 
exclusive allegiance to her, and obedience to her “ supreme law ” — the federal 
pact — all of her proportion of the officers of the three departments of the fed¬ 
eral agency, except such subordinate functionaries as should be provided for by 
federal law — these to be chosen for her, and her federated sisters, from among 
their respective subjects, and exclusively by their authority. 

The argument made by this long series of extracts from the principal journal 
of Massachusetts, and those from the Worcester Spy, is the most decisive that 
could be framed, for it shows precisely how the system was presented and 
advocated; and what the views and motives of the people were in adopting it. 
This argument destroys, without remedy, the theory of Story and Webster, for 
there is, in the whole series, (and the same may be affirmed of the federalist and 
Elliott’s debates,) no sign whatever of the people of the united states, as a 
nation or great political community, ordaining a constitution, and therein 
establishing (to use Webster’s phraseology) “a distribution of powers, between 
this, their general government, and their several state governments; ” while 
on the other hand, it is proved, beyond controversy, that the American common¬ 
wealths of people, in a “ convention of states ” (as Hamilton called it), framed 
the plan; and that each state deliberated on it, in her own convention, having 
the absolute right to ratify or reject; and finally that each state adopted it, by 
vote, as a political body. The states, then, gave it all the life and force it ever 
had, or could justifiably have. Nay, more, not only does this compact of states 
provide for, direct, limit, and control, the federal government, but this said agency 
is personally composed oT men who are alike members, citizens, and subjects, of 
the states; and who are not only in allegiance exclusively to the said states, 
but are elected by them to administer their general government — “ the federal 
government of these states,” as the federal convention unanimously called it. 
These states, as fully organized bodies of people — each one having every 


APPENDIX A. NO. 2. 


457 


characteristic of a nation — constituted whatever nation there is. They com¬ 
prised all the people, and held all the territory, leaving out of their jurisdiction 
not an acre or a man to make a nation of. 

The state and the federal constitutions, are alike the fundamental laws of the 
states — the latter being their “supreme law.” Both are necessarily subordinate 
to the law-makers. A federal law operates, and a federal functionary has juris¬ 
diction in, any state — New York, for instance — because it is the sovereign 
will of the said state, it being with her authority, that the federal government 
exists in her territory, and acts on her citizens or subjects. Strange as some 
may think it, there is nothing inconsistent with this view, in the records, history, 
and political writings of the country, which were contemporaneous with the 
formation of our federal polity. Everything shows the independent political 
action of the states, as sovereign bodies, in ordaining and establishing the con¬ 
stitution and their determination to preserve their sovereignty in the union; 
while not even a syllable shows any national action. The states are self-united 
as equals ; they as self-associated are whatever nation there is ; and the phrases, 
“ united states,” and “ union of states,” so often repeated in the federal pact, 
make, of themselves, an end of all honest controversy of the subject. 


No. 2. 

THE UNION OF STATES. 

Extracts from the Virginia Gazette, 'published at Richmond , from May 31 , 1787 , to 

February 26, 1789. 

[The Virginia Gazette, May 31, 1787.] 

“ Baltimore, May 11. Returns of the delegates appointed by the several 
states, (Connecticut and Rhode Island except,) to meet in general conven¬ 
tion at Philadelphia, on Monday the 14th inst., for the purpose of revising the 
confederation of the United States.” Then follow the names. 

Ibid., June 14, 1787. Richmond, June 14. We expected to have been 
able to entertain our readers with the proceedings of the federal convention; 
but we are sorry to inform them, that everything is carried on by them with 
greatest secrecy. We learn that all the states are now represented, except 
New Hampshire and Rhode Island. 

[The Virginia Gazette, June 21, 1787.] 

In stating the purposes of the great political movement, says: “ To revise 
the confederation, and to fall upon a system of commercial regulations, which 
may tend to the revival and establishment of our credit, and the encouragement 
of our trade and manufactures, are objects of such magnitude, as to require 
the united wisdom of the continent.” . . . And “ to render the constitution of 
the federal government adequate to the exigencies of the union,” is also stated 
to be a purpose. 

Ibid., August 9, 1787. “Richmond, August 9. On the 26th ult., the fed¬ 
eral convention having resolved upon the measures necessary to discharge their 
important trust, adjourned till Monday, the 6th inst., in order to give a com- 



458 


THE UNION OF STATES. 


mittee appointed for that purpose, (viz., Mr. Randolph of Virginia, Mr. 
Gorham of Massachusetts, Mr. Ellsworth of Connecticut, Mr. Wilson of 
Pennsylvania, and Mr. Rutledge of South Carolina,) the time to arrange and 
systematize the materials which that honorable body have collected,” etc. 

Ibid., Aug. 30, 1787. “Richmond, August 30. The convention, wo are 
informed, have unanimously agreed on a system for the future government of 
the united states, which will be speedily laid before the several legislatures, 
for their acceptance and ratification. What that system is, is not as yet known. 
... A correspondent observes, that, as there is so much frailty in human 
nature, the people from whom all power is derived under a purely republican 
system of government, when they are about to invest man with power and 
authority, even for the necessary purposes of government, [require] that it be 
strictly guarded and limited; so that it be not abused to the oppression of 
those who conferred it. Hence, from neglect or inattention, in fixing those 
essential checks and restraints on rulers and governors ; it is that we behold 
in the world so small a portion of mankind, who are not tyrants, or slaves, 
oppressors, or oppressed.” 

Ibid., Sept. 27, 1787. This number contains the proposed federal constitu¬ 
tion, with the resolutions concerning the mode of ratification and carrying into 
effect; and the letter of General Washington to the President of congress, sent 
by unanimous order of the convention. 

Ibid., Oct. 4, 1787. This number contains a petition of the people of Phila¬ 
delphia and suburbs, to the general assembly of Pennsylvania as follows: 

“That the petitioners have seen the proposed constitution, and that “as 
they conceive it to be wisely calculated to form a perfect union of the states, 
as well as to secure to themselves and posterity the blessings of peace, liberty, 
and safety, they earnestly desire that the said constitution may be adopted as 
speedily as possible, by the state of Pennsylvania, in the manner recommended 
by the convention.” 

Ibid., Oct. 4, 1787. This number presents the following procedure in con¬ 
gress : 

“ The united states in congress assembled. Friday, September 28, 
1787. Present: New Hampshire, Mass., Conn., N. Y., N. j., Pa., Del., Va., 
N. C., S. C. and Georgia; and from Maryland, Mr. Ross. 

“ Congress having received the report of the convention, lately assembled at 
Philadelphia, Resolved unanimously, That the said report, with the resolutions 
and letter accompanying the same, be transmitted to the several legislatures, 
in order to be submitted to a convention of delegates, chosen in each state, by 
the people thereof, in conformity to the resolves of the convention, made and 
provided in that case. 

“ Charles Thompson, Secretary .” 

Ibid., Nov. 1,1787- This number states that the house of delegates of Vir¬ 
ginia has unanimously voted for calling a convention, to consider the constitu¬ 
tion, and that the matter is now before the senate. In the house of delegates 
“ the only question seemed to be, whether the convention should be left at 
large to propose amendments to the constitution, in case they should deem it 
advisable; and after a short debate, it was agreed, with unanimity, that the 
convention could not be restrained, in the discussion of this momentous busi¬ 
ness, from accepting or rejecting it, or proposing amendments, as they should 
see fit. ... A change of one or two exceptionable, or doubtful clauses ; may 
be made to the advantage of all the states,” etc. 


APPENDIX A. NO. 2. 


459 


Ibid., Nov. 22, 1787. A Connecticut correspondent observes that, “having 
received the new constitution in the regular channel, we have . . . taken the 
proper measures for calling a state convention, and determining upon the new 
plan of government.” 

Ibid., Nov. 29, 1787. It is stated that, “when the illustrious Washington 
was about to sign the constitution as president of the convention, he paused 
with pen in hand, and said: ‘ Should the states reject this excellent constitution , 
the probability is an opportunity will never again offer to cancel [f] another in 
peace: the next will be drawn in blood .’ ” 

Ibid., Dec. 20, 1787. The first ratification of the federal constitution — 
that by Delaware—is presented in this number thus : “ Wilmington, December 
12. . . . The new Federal constitution was ratified by unanimous vote, on 
Friday, and the ratification signed by every member as follows: 

“We the deputies of the people of the Delaware state, in convention met, 
having taken into our serious consideration the federal constitution, proposed 
and agreed upon by the deputies of the united states, in a general convention 
held at the city of Philadelphia, on the 17th of September, a. d., 1787, have 
approved, assented to, ratified and confirmed, and by these presents do, in 
virtue of the power and authority to us given for that purpose, for, and in be¬ 
half of ourselves and our constituents, fully, freely and entirely approve of, 
assent to, ratify, and confirm the said constitution. 

“Done in convention, the seventh day of December, in the year of our Lord 
one thousand seven hundred and eighty-seven.” 

The editor says : “ The convention agreed to cede 10 miles square, with the 
right of exclusive legislation, to congress for seat of government.” 

# He also says that, “ while Delaware acted thus speedily, the convention of 
Pennsylvania is debating the ground by inches, having been in session almost 
a month, and being yet engaged on the first article.” 

Ibid., Dec. 27, 1787. Gives an account of a meeting of the inhabitants of 
Pittsburg, Pa., “ for the special purpose of taking the sense of this town with 
respect to the system of confederate government, proposed by the late conven¬ 
tion at Philadelphia. General John Gibson in the chair.” 

“ On the 12th instant, the federal constitution was approved of by the state 
of Pennsylvania, by a majority of 23 members.” 

Ibid., Jan. 3, 1788. “Boston, Dec. 7. The disunited states of America, 
at this all important crisis, may be fitly compared to 13 distinct, separate, 
independent, unsupported columns, . . . the glorious frame of government 
for the united states presents itself to view — the columns appear with addi¬ 
tional lustre; their use and design are fully understood; rising from their solid 
pedestals, they receive the heaven-descended dome, supporting and supported 
by the noble structure.” 

In the preamble of an act of the legislature of Virginia, it is stated that, 
“ the proceedings of the federal convention [are to] be submitted to a conven¬ 
tion of the people, for their full and free investigation, discussion and decision.” 

Ibid., Jan. 31, 1788. “We learn that, in the course of this month 
the states of New Hampshire and Connecticut have adopted the proposed 
federal constitution — the latter by a majority of 127 votes. Five states have 
now ratified the federal government, viz: Del., Pa., N. J., Ct., and N. H.” 
[It was then a mistake as to the last. See the extract from the number for 
March 20, infra.'] 

At an “elegant supper” of the federalists, in Carlisle, Pa., (after a riot by 
the anti-federalists, during which Chief Justice McKean and James Wilson 
were burned in effigy,) “the following toasts were drank : 1. The federal con- 


460 


THE UNION OF STATES. 


stitution ; 2. General Washington and the federal constitution; 3. The states 
who acceded to the federal constitution; 4. A speedy accession and ratifica¬ 
tion of the constitution by all the states. 55 [Note the words “federal 55 and 
“accede. 55 ] 

Ibid., Feb. 14, 1788. At a dinner in Richmond, on the anniversary of Gen. 
Washington’s birthday, one of the toasts was : “The congress — may the vir¬ 
tues of the first, be revived by the adoption of a happy federal constitution. 55 

“ A northern paper mentions the adoption of the federal constitution by the 
state of Georgia. 55 

[Virginia Gazette, Feb. 28, 1788.] 

Under date of “ Boston, February 4,” is given the ratification by the state of 
Massachusetts, with her proposed amendments — nine in number—the first being 
as follows : “ That it be explicitly declared that, all powers not expressly dele¬ 
gated to congress, are reserved to the several states, to be by them exercised. 55 

“ And the convention do, in the name and behalf of the people of this com¬ 
monwealth, enjoin it upon their representative in congress, at all times,” to 
urge the adoption of said amendments. 

Says the editor: “With the highest satisfaction we announce to the public 
that, the convention of the state of Massachusetts adopted the new constitution 
on the 6th instant, by a majority of 19 ; 187 yeas—-168 nays. 

“ The legislature of South Carolina have appointed the 12th of May next for 
the meeting of their convention, to decide on the new federal constitution.” 

The same paper presents the ratification of Georgia, in the words and figures 
following: 

“Augusta, January 5. We have the pleasure to announce to the public 
that, on Wednesday last, the convention of this state unanimously ratified the 
federal constitution, in the words following, viz: 

“State or Georgia, in convention, Wednesday, January 2, 1788. We 
the delegates of the people of the state of Georgia, in convention met, having 
taken into our serious consideration the federal constitution, agreed upon and 
proposed by the deputies of the united states in general convention,” etc., 
“ have assented to, ratified, and adopted, and by these presents do, in virtue of 
the powers and authority to us given, by the people of the said state for that 
purpose, for, and in behalf of, ourselves and constituents, fully and entirely 
assent to, ratify and adopt the said constitution, which is hereunto annexed 
under the great seal of the said state. Done in convention, at Augusta, in 
the said state, January 2, 1788.” 

Ibid., March 6,1788. Extract from letter from Charleston, S. C., January 22: 
“ As to the new constitution, I hope it will be adopted with amendments by 
this state; but the opposition is heavy and increasing.” 

Ibid., March 13, 1788. “ We shall very soon reckon South Carolina among 

the members of the new confederacy.” 

A letter from Wilmington contains congratulations “ on the ratification of 
the federal constitution, by the state of Massachusetts.” 

A Yankee Doodle song winds up with the following: 

“ So here I end my federal song, 

Composed of thirteen verses, 

May agriculture flourish long, 

And commerce fill our purses. 

Yankee doodle keep it up 
Yankee doodle dandy; 

Mind the music and the step, 

And with the girls be handy.” 


APPENDIX A. NO. 2. 


461 


Ibid., March 20, 1788. Contains advices from New Hampshire, showing 
that, “as in the convention there were 54 against and 51 for the federal con¬ 
stitution, an adjournment till June was procured, it being hoped that some of 
the 40 towns that had instructed their delegates to vote against, would with¬ 
draw such instructions; and it is hoped that the convention at the session will 
adopt a constitution, so replete with benefits to New Hampshire, as well as the 
union in general.” 

Ibid., April 3, 1788. At a convention begun and held for the District of 
Kentucky, at Danville, Sept. 17, 1787, it was resolved that this convention 
fix Dec. 31, 1788, as the time when “the authority of the commonwealth of 
Virginia, and of its laws, over the District of Kentucky, shall cease and deter¬ 
mine forever, under the exception specified in the act concerning the erection 
of Kentucky into an independent state. 

“ Resolved, as the opinion of this convention, that the convention shall be 
elected with full power and authority to frame and establish a fundamental 
constitution of government for the proposed state, and to declare what laws 
shall be in force therein, until the same be abrogated, or altered by the legisla¬ 
tive authority acting under the constitution so to be framed and established.” 

Ibid., May 8, 1788. A correspondent, writing from Annapolis, Md., says 
that “ on the 21st instant, the convention appointed by the citizens of this 
state, for the purpose of considering the constitution proposed by the general 
conventions, for the government of the united states, met at Annapolis. . . . 
Maryland * has opened her bosom to the embraces of her sister states; has 
erected the seventh pillar, upon which will be reared the glorious fabric of 
American greatness. . . . 0 ! may the august temple of freedom soon be sup¬ 
ported by 13 pillars, with its gates unfolded to every part of the creation.” 

A committee of 13 was appointed to state amendments, which the conven¬ 
tion would subsequently recommend to the people, if deemed necessary. The 
ratification, however, was unqualified. 

The first was, “ that it be declared that all persons entrusted with the legis¬ 
lative or executive powers of government, are the trustees and servants of the 
public, and, as such, accountable for their conduct: Wherefore, whenever the 
ends of government are perverted, and public liberty manifestly endangered, 
and all other means of redress are ineffectual, the people may, and of right 
ought, to object to, reform the old, or establish a new government,” etc, etc. 

The 18th was, that “ congress shall exercise no power but what is expressly 
delegated by this constitution.” 

At a federal procession, the following toasts were drunk: “ . . . 4. The 
seven adopting states of the federal constitution; 5. A speedy ratification, by 
the remaining six, without amendments.” 

And at a dinner given to the convention, the following was the thirteenth 
toast: “ May all the states of America join heartily in adopting, and make 
effectual, the proposed federal government.” 

Ibid., June 5, 1788. This number contains a very well written and able 
address -— copied from the Pennsylvania Gazette — to the members of the 
convention of Virginia. [It *nust have been written by Tench Coxe — though 
the American Museum publishes a different one, addressed as above—-James 
Wilson, Judge McKean, or some other leading constitutionist.] 

He speaks of the “ determination, which is to call the American union once 
more into political existence.” 

Alluding to the objection, “ that your populous state will not be properly 
represented in the federal senate ” he says: “ Permit me to remind you that 
while you have but one vote of thirteen in the present union, you will have 
twelve of 91 in the new confederacy.” 


462 


THE UNION OF STATES. 


Further along, taking it for granted the nascent state of Kentucky will act 
with Virginia, he says: “ It will be proper to consider too, the effect of the 
erection of Kentucky into a separate state, and of her becoming another mem¬ 
ber of the new confederacy.” 

“ Should the present attempt to infuse new vigor into the general govern¬ 
ment, fail of success, partial confederacies must at once follow.” 

He then supposes a case wherein “ Virginia rejects the proposed constitution, 
and Georgia, South Carolina, and Maryland, are members of the new confed¬ 
eracy.” 

He says further, Virginia, “ of all the members of the union, has the least 
cause of complaint,” and speaks of the prospect of Kentucky becoming “ an 
independent member of the American union.” 

[Virginia Gazette, June 12,1788.] 

“ Baltimore, June 3. The sloop George, Capt. Chase, which carried the 
account of the ratification of the federal constitution by this state, to South 
Carolina, returned on Saturday, and brought the following interesting informa¬ 
tion : ‘ On the 23d instant, at five o’clock in the evening, the question was put, 
that the convention assent to, and ratify, the federal constitution — for the 
united states of America, upon which the vote stood as follows: For the ratifi¬ 
cation 149 — against 73 — majority 76.’ ” 

“ There was a discharge of artillery from Federal Hill, on Saturday even¬ 
ing, at 5 o’clock, IN HONOR OF THE STATE OF SOUTH CAROLINA.” 

“ A number of gentlemen convened at Grant’s tavern,” and drank the follow¬ 
ing among other toasts: “1. The state of South Carolina; .2. The South 
Carolina convention; 3. Our sister Virginia — may she soon complete the 
arch of the grand federal building ; 4. May the noble spirits of the minorities 
of the conventions of Massachusetts and South Carolina, be imitated by the 
opposers of the federal constitution,” etc. 

The same number says that, “ the beautiful little ship Federalist [the same 
that had in a recent procession been manned by 13 men; drawn by 13 horses, 
and saluted by 13 guns] . . . sailed for Mount Vernon! Capt. Barney has the 
honor to present her to the illustrious farmer, who owns that spot, as an offer¬ 
ing from the merchants, expressive of their veneration of his services and 
federalism.” 

Ibid., June 19, 1788. The editor copies from a Philadelphia paper the 
following extract from a letter: “ New Hampshire is well disposed, and will 
have her convention but a few days in session before she ratifies.” 

He also copies some interesting observations and reflections from a New 
York writer — the following being apropos: . . our warmest friends and pa¬ 

triots, having been instrumental to our independence, are endeavoring, . . . 
by the adoption of a new system of government, to place these thirteen states 
upon a broad and lasting foundation, that shall stand the shocks of time, diffuse 
the blessings of free and universal trade, command respect and homage from 
the surrounding world, and transmit to posterity, unimpaired, those sacred 
rights unto which themselves were born.” 

The paper also announces the arrival of “ the ship Federalist at Mount Ver¬ 
non, on Sunday evening, the 3d instant,” and her being “ saluted with eight 
guns, being one for every adopting state.” 

The Virginia convention is reported to be closely investigating the constitu¬ 
tion ; and it is said that “ their constituents and posterity will applaud the 
assiduity and attention they have shown to this interesting subject. They 
have now arrived to the article respecting the executive. It is yet impossible 
to determine on which side the majority will be.” 


APPENDIX A. NO. 2. 


463 


The same paper contains the ratification of South Carolina; the amendments 
proposed by her—seconding Massachusetts; her federal procession, dinner 
at fresco , etc, etc. 

The ratification is as follows : 

“ In convention of the people of the state of Squth Carolina, by their repre¬ 
sentatives held in the city of Charleston [from the 12th to the 23d oi May, 1788]. 

The convention, having maturely considered the constitution, or form of 
government, reported to Congress by the convention of delegates from the 
united states of America, and submitted to them by a resolution of the legisla¬ 
ture of this state, passed the 17th and 18th days of February last, in order to 
form a more perfect union, establish justice, ensure domestic trauquillity, pro¬ 
vide for the common defence, promote the general welfare and secure the 
blessings of liberty to the people of the said united states and their posterity, 
do, in the name and behalf of the people of this state, hereby assent to and 
ratify the said constitution. Done in convention, the 23d of May, a. d., 1788, 
and of the independence of the united states of America, the twelfth. 

Thomas Pinckney, [l. s.] 

attest : John S. Dart, [l. s.] President. 

Secretary. 

The convention also declared formally that, “ it is essential to the preserva¬ 
tion of the rights reserved to the several states, and the freedom of the people 
under the operations of a general government, that the right of prescribing the 
time, place and manner of holding their elections to the federal legislature, 
should be forever inseparably annexed to the sovereignty of the several 
states,” except — the declaration goes on to say—where the state legislature 
shall neglect to perform the same, according to the tenor of the federal consti¬ 
tution, the federal government may interfere as authorized therein: — this of 
course would be by virtue of the state’s authority. 

“ This convention doth also declare that no section, or paragraph, of the 
said constitution warrants a construction that the states do not retain every 
power not expressly relinquished by them, and vested- in the general govern¬ 
ment of the union.” 

“Resolved, that it be a standing instruction to all such delegates as may 
hereafter be elected to represent this state in the general government, to exert 
their utmost abilities and influence to effect an alteration of the constitution 
conformable to the aforegoing resolutions.” 

[Virginia Gazette, June 26,1788.] 

It is announced that, “yesterday the grand question came on before the 
Honorable, the convention of this state, for the ratification of the federal con¬ 
stitution,” and that the vote was 89 for, and 79 against ratification, also that 
17 or 18 members were appointed a committee to prepare amendments to 
recommend for future adoption. 

Ibid., July 3, 1788. In this number is printed the act of ratification of Vir¬ 
ginia, also 20 articles for a bill of rights, and 21 amendments which the con¬ 
vention desired should be added to the federal constitution — they, “in the 
name and behalf of the people of this commonwealth,” enjoining it upon all 
representatives in congress to exert themselves continually to have them ratified, 
and to conform to the spirit of them, as far as the federal constitution would 
allow, in all laws that might be meanwhile passed. 

The first amendment proposed by Virginia is the same that Massachusetts 
originated, viz : “ That each state in the union shall respectively retain every 


464 


THE UNION OF STATES. 


power, jurisdiction, and right which is not by this constitution delegated to 
the congress of the united states, or to the departments of the federal govern¬ 
ment.” 

The act of ratification is as follows: 

“ Virginia, to-wit: We the delegates of the people of Virginia, duly elected 
in pursuance of a recommendation from the general assembly, and now met in 
convention, having fully and freely investigated and discussed the proceedings 
of the federal convention, and being prepared as well as the most mature 
deliberation hath enabled us, to decide thereon, do, in the name and behalf of 
the people of Virginia, declare and make known that these powers granted 
under the constitution, being derived from the people of the united states, may 
be resumed by them, whensoever the same shall be perverted to their injury, 
or oppression, and that every power not granted thereby remains with them 
and with their will: That, therefore, no right of any denomination can be can¬ 
celled, abridged, restrained, or modified by the congress, by the senate, or 
house of representatives, acting in any capacity, by the president, or any 
department, or officer of the united states, except in those instances in which 
power is given by the constitution for those purposes. That among other 
essential rights, the liberty of conscience and of the press cannot be cancelled, 
abridged, restrained or modified by any authority of the united states. 

“With these impressions, with a solemn appeal to the Searcher of hearts for 
the purity of our intentions, and under the conviction that, whatever imper¬ 
fections may exist in the constitution, ought rather to be examined in the mode 
prescribed therein, than to bring the union into danger, by a delay, with a hope 
of obtaining amendments previous to the ratification : — 

“We, the said delegates, in the name and in behalf of the people of Virginia, 
do by these presents, assent to, and ratify the said constitution, recommended 
on the 17th day of September, 1787, by the federal convention, for the govern¬ 
ment of the united states; hereby announcing to all those whom it may concern, 
that the said constitution is binding on the said people.” 

In the same number is the following extract from a letter from New Hamp¬ 
shire; dated June 21, 1788 : “I have the great pleasure of informing you that 
this state has this day adopted the federal constitution: This important ques¬ 
tion was carried by a majority of eleven — ayes 57 — nays 46.” 

Ibid., July 24, 1788. A letter from London speaks of “the constitution 
agreed on by the convention, and proposed to the states for their acceptance 
and ratification; ” and the hope is expressed that as everything is devised “ for 
securing their liberties, for the establishment of the public credit, and for pro¬ 
moting the peace and harmony of the states . . . none will be so wanting as 
to reject a code which appears so fraught with every blessing.” 

In the news from Boston is an item about Providence and Newport, R. I., 
celebrating “ the ratification of the constitution by New Hampshire.” In the 
former several salutes were fired on Federal Hill, and the college boys “ named 
the beautiful green around the college, federal parade.” 

In the same number, is a long report of the proceedings in the convention 
of New York, Jay, Hamilton, Duane, Livingston, and others, debating. 

In the course of the report it is stated that, in the afternoon a considerable 
number of the federalists had a meeting “to congratulate each other on the 
happy news from Virginia; ” and “ they fired ten cannon in honor of the ten 
adopting states.” 

The ratification of Virginia seemed to have a favorable influence : “ The 
spirit of warm contention” “between the parties in the convention” seemed 
to subside, and it is stated that “the convention are now framing their objec¬ 
tions to the constitution for amendments; it is supposed they will be similar 
to those of Virginia.” 


APPENDIX A. NO. 2. 


465 


It is further stated that, accounts from New York indicate “that the 
final question was to have been taken in the honorable convention yes¬ 
terday,” and that “ the constitution would be carried in the same mode as by 
Virginia.” 

In the same number is a letter dated July 7, 1788, from a country girl in 
Philadelphia, to her sister in Reading, in which she speaks of a procession she 
witnessed: “ . . . Then came several arm in arm, bearing hags with Delaware, 
Va., S. C., Conn., etc., painted in large letters on them — signifying the pro¬ 
priety of union among us; of which I cannot understand the meaning, as we 
were all united before, and this may tend to disunite us.” 

A letter from N. Y., July 14, says: “ The last accounts from our convention 
are unfavorable. ... I fear their mode of (what they call an) adoption will 
amount to a rejection. Should they reject, commotions will ensue.” 


[Virginia Gazette, July 31, 1788.] 

A letter from Poughkeepsie, dated July 11, says: “This morning Mr. Jay 
brought forward the grand question, by a resolution for adopting the constitu¬ 
tion. He spoke forcibly and commanded great attention. . . . The Chancellor 
also spoke. ... Our worthy chief justice; also Mr. Smith, Mr. Lansing, and 
the governor, spoke against the resolution; and from what fell from them, 
they seem determined to support a conditional adoption. This the feder¬ 
alists consider a rejection under another name, and no doubt will protest 
against it.” 

Ibid., Aug. 7, 1788. “New York, July 12. From the Independent 
Journal Extraordinary, New York, Monday, July 28, 1788. On Saturday 
evening, about nine o’clock, arrived the joyful tidings of the adoption of the 
new constitution, . . . yeas 30, nays 25—majority 5.” [This is a mistake—• 
the vote was 30 to 27, majority 3.] The account goes on to state that bells 
were rung and guns fired. The “federal ship Hamilton” fired a salute; 
general joy prevailed and several malcontents “ drank freely of the federal 
bowl,” and declared themselves “ reconciled to the new constitution.” 

The same number contains a letter from Providence which says: “ The op- 
posers of the new constitution in this state feel beaten and are bitter.” . . . The 
writer further says that, though the people of Providence “ have not celebrated 
the ratification of the constitution by ten states, . . . yet there is no town on 
the Continent whose inhabitants are more universally federal,” etc. 

Ibid., Aug. 14, 1788. “ Ratification of the constitution by the convention of 

the state of New York. 

“ We, the delegates of the people of the state of New York, duly elected and 
met in convention, having maturely considered the constitution for the united 
states of America ... in the name and in the behalf of the people of the state 
of New York, do, by these presents, assent to, and ratify the said constitu¬ 
tion.” 

Ibid., Aug. 28, 1788. “A Petersburg paper says the convention of the 
state of North Carolina have not actually rejected the constitution, but have 
proposed a bill of rights and amendments,” intending to adopt when the amend¬ 
ments should be made ; all of which was agreed to by a majority of 102 — 1 yeas 
184, nays 82. The opinion of the convention is “ that congress will call a 
general convention to consider proposed amendments,” and that they “ will be 
submitted to conventions in the several states.” “ The convention showed 
every disposition to promote the interest of the union, . . . and, perceiving 
exceptions in the new constitution, they thought themselves justifiable in post- 

30 


466 


THE UNION OF STATES. 


polling the ultimate decision of the important question until it should be recon¬ 
sidered by the several states, and such objections removed as might be found 
necessary to the preservation of the union.” 

Ibid., Sept. 4, 1788. This number contains the following: 

“STATE OF NORTH CAROLINA. 

“ In convention, Aug. 2,1788. Resolved that a declaration of rights, assert¬ 
ing and securing from encroachment the great principles of civil and religious 
liberty, and the unalienable rights of the people, together with amendments to 
the most ambiguous and exceptionable parts of the said constitution of govern¬ 
ment, ought to be laid before congress, or the convention of the states that 
shall, or may be called for the purpose of amending the said constitution, for 
their consideration, previous to the ratification of the constitution aforesaid, on 
the part of the state of North Carolina.” 

There are 20 declarations of right and 26 amendments proposed. The first 
amendment is as follows : “ That each state in the union shall respectively 
retain every power, jurisdiction and right, which is not, by this constitution, 
delegated to the congress of the united states, or to the departments of the 
federal government.” 

Ibid., Sept. 18, 1788. A letter of a correspondent of a Philadelphia paper 
asks as follows: “Why have not congress complied with the recommendation 
of the federal convention in organizing the new government, when adopted 
by nine states F The plan proposed by that august body, has been re-echoed 
by eleven states, a considerable while since, yet, strange to tell! (in a repub¬ 
lican government) the great voice of the people has not been respected by our 
rulers.” 

The same number contains an able article, signed “ Solon , Jr.” from the 
Providence Gazette : 

“ . . . Many of the people, and some respectable states in the union, think 
the new constitution needs amendments. The ratification of it by the state of 
New York, bears a singular complexion, and North Carolina has refused to 
ratify it.” He then says, the making of these amendments “must be done by 
the states under the old confederation, or as an operation of the new constitu¬ 
tion. Eleven states having ratified the constitution unconditionally, it is not 
likely that they will so far recede from that measure, as to humor the remain¬ 
ing two states, in holding a convention under the old confederation.” 

Ibid., Oct. 9, 1788. Extract from the letter of a gentleman in London, 
dated July 26,1788 : “ I suppose before this time, nine states at least will have 
adopted the new constitution.” 

Ibid., Nov. 6, 1788. “ The general assembly [of Virginia] have taken 

measures to organize the new government. They have resolved to lay off the 
state into districts,” each to “ appoint ” a representative. “ Saturday next the 
senators are to be elected.” It is also stated that the house of delegates, by a 
great majority, resolved that “ an application be made to the congress of the 
new government to call a convention of the states to take into their considera¬ 
tion the defects of the new constitution.” 

Ibid., Nov. 13, 1788. “A bill has passed the house of delegates, for 
laying off the Commonwealth into twelve districts, for the choice of electors to 
elect the president of the national government.” 

“ The honorable Richard Henry Lee and William Grayson, esquires, were 
elected members of the senate from this state.” 


APPENDIX A. NO. 3. 


467 


[Virginia Gazette, December 4, 1788.] 

The Newport Herald says a motion was made in the general assembly of 
Rhode Island, “ for the appointment of a convention to consider the proposed 
constitution.” The motion was lost by 40 nays to 14 yeas. 

“ It appears,” says the editor, “ that the legislature are determined to hazard 
the consequences of a separation from the union.” 

Ibid., Dec. 25, 1788. A late London paper is quoted as follows : “ By 
the last account seven of the states had acceded to the plan; ... no doubt is 
entertained of the concurrence of South Carolina and Virginia. The congress 
will soon perfect the constitution of the confederated republic.” 

Charles Carroll (of Carrollton) and John Henry are — so the editor says — 
elected “ senators in the new congress ” from Maryland. 

Ibid., Eeb. 5, 1789. The editor says New York, for some reason, “will 
have no agency in the choice of those important officers, the president and vice- 
president ; nor will she be represented in that body where her most important 
interests will be at stake, the senate of the united states.” 

“ Yesterday 10 of the electors of this state met at the capitol for the purpose 
of electing a president and vice-president; the ballots stood as follows : 

“ Gen. Washington, president, 10; John Adams, vice-president, 5; Henry 
Clinton, vice-president, 3; John Hancock, vice-president, 1; John Jay, vice- 
president, 1. 

“ The following gentlemen nre elected representatives in the congress of the 
united states for this state, viz : John Page, James Madison, Jr., Samuel 
Griffin, Theodorick Bland, Andrew Moore, Alexander White and Richard B. 
Lee, esquires.” 

Ibid., Eeb. 19, 1789. “A gentleman in Georgia thus writes to a friend in 
Rhode Island: ‘ Our old state constitution, which, like that of Pennsylvania, 
has a single house of assembly, is found so defective, that a convention to 
frame a new one is ordered. Our present ideas are that, the new one shall be 
nearly similar to the new federal constitution. I am sorry to hear that your 
state still continues averse to the new government ? ’ ” 

Ibid., Eeb. 26, 1789. “Philadelphia, Eeb. 6. The ten federal electors 
chosen by this state, gave ten votes for Gen. Washington, as president, and 
eight for Hon. John Adams, as vice-president.” 


No. 3. 

THE UNION OF STATES. 

Extracts from the American Museum, from January, 1787, to July, 1789. 

The American Museum, or Repository of Ancient and modern fugitive pieces. 
Matthew Carey. Philadelphia: Carey, Stewart & Co. 

This plan of preserving valuable papers, etc., was that of Dr. Eranklin. It 
was also highly approved by Gen.Washington. 


[American Museum, January, 1787.] 

In an address to the people of the United States, by Benjamin Rush, M. D., 
u to suggest the defects of the Confederation ” he says : “ they consist 1st, In 



468 


THE UNION OF STATES. 


the defect of coercive powers ; 2d, In the defect of an exclusive power to Issue 
paper money and regulate commerce; 3d, In vesting the sovereign power of 
the United States in a single legislature; and 4th, In the too frequent rotation 
of its members.” 

As to the 3d he says: “ To remedy this, let the supreme federal power be 
divided, like the legislatures of most of our States, into two distinct independent 
branches. Let one of them be styled the council of the States, and the other 
the assembly of the States. Let the first consist of a single delegate, and the 
2d of 2, 3, or 4 delegates, chosen annually by each State. Let the President 
be chosen annually by joint ballot of both houses.” 

He continues : “ The people of America have mistaken the meaning of the 
word sovereignty. Hence, each State pretends to be sovereign. In Europe, it 
is applied only to those States which possess the power of making war and 
peace, of forming treaties and the like. As this power belongs only to Con¬ 
gress, they are the only sovereign power in the United States,” [the above is a 
specimen of the error of some few men of that day. Rufus King was one of 
them. They seemed to forget that all the States just then declared themselves 
to be each sovereign, and that the Congress only had power delegated from the 
States — and was thus an agency]. 

He continues: “We commit a similar mistake in our ideas of the word 
independent. No individual State as such has any claim to independence. 
She, is independent only in a union with her sister States in Congress.” [That 
union was voluntary, and there was no power above a State to force it to re¬ 
main. She was as free and independent in the union as out — as she was only 
bound by her own will; the union being a voluntary one. Dr. Rush was then 
great in his profession, but not so great in statesmanship. He took a correct 
view after its adoption. See his letter to Dr. Ramsey, in the American 
Museum for May, 1788, post p. 45.] 

Observations on the propriety of investing Congress with power to regulate the 

trade of the United States. By William Barton, Esq. American Museum 

for January, 1787. 

“ If on the one hand, this measure should be found to encroach too far on 
the sovereignty and rights of the several states, individually, there can be no 
doubt that it ought to be rejected. But if, on the other hand, nothing of that 
kind is to be apprehended, and it can be made evident that it would be attended 
with the happiest consequences to every State in the union, we may conclude 
that none but persons inimical to us, or contracted speculative politicians will 
give any opposition. . . . 

“. . . Every State is, with respect to its own police, distinctly considered 
free, sovereign and independent, and as a component part of the United States, 
is also free, sovereign and independent, as the united states of America form 
one grand entire republic, composed of a number of small ones, confederated 
for their common safety and advantage, . . . the supreme sovereign authority 
of the whole, ought most undoubtedly to be lodged in Congress; and that 
body should possess such powers and privileges, not incompatible with the 
happiness of a free people, as usually appertain to sovereignty, in order to 
enable them to direct the common concerns of the united states upon uniform 
principles, so as to afford equal advantages to each, and give energy to the 
whole. . . . 

“ As the united states only, are we politically known to other powers; as 
such we send and receive ambassadors, enter into treaties and alliances, declare 
war, proclaim peace, etc., etc. These and others of equal importance, are 
powers with which we have invested the united states in congress assembled; 


APPENDIX A. NO. 3. 469 

and yet it is said that to allow that delegated body a right to regulate the 
trade of the united states, is too great a power to be entrusted to them. 5 * 
Ibid., for April, 1787. 

A distinguished and able writer, Dr. Price, says : “ Without doubt the 
powers of congress must be enlarged. In particular, a power must be given it 
to collect on certain emergencies the force of the confederacy, and to employ 
it in carrying its decisions into execution. A state against which a decision is 
made, will yield of course, when it knows that such a force exists, and that 
it allows no hope from resistance.” 

Same writer says: “ The credit of the united states, their strength, their 
respectableness abroad, their liberty at home, and even their existence depend, 
ou the preservation of a linn political union: and sucli an union cannot be 
preserved without giving all possible weight and energy to that delegation 
which constitutes the union.” 

Extract from the address of the convention, held at Annapolis : of “ the 
commissioners from the said states [of Virginia, Delaware, Pennsylvania, New 
Jersey and New York]. Commissioners were also appointed by New Hamp¬ 
shire, Massachusetts, Rhode Island, and North Carolina, but they did not 
attend. None appointed by Connecticut, Maryland, South Carolina, or 
Georgia.” They recommend the convention at Philadelphia, 2d Monday in May 
next, “ to take into consideration the situation of the united states, to devise 
such further provisions as shall appear to them necessary to render the consti¬ 
tution of the federal government adequate to the exigencies of the union, and 
to report such an act, for that purpose, to the United States, in Congress 
assembled, as when agreed to by them, and afterwards confirmed by the legisla¬ 
ture of every state, will effectually provide for the same.” 

Extract from an able paper , entitled “ a view of the federal government of 
America ; its defects and a proposed remedy ,” by “a Bostonian.” 

The writer says “ there are three grand immutable principles of a good gov¬ 
ernment,” “ the legislative, the judicial and the executive. What ciphers those 
legislators must be, who cannot bring their own laws into judicial operation, 
and how trifling are those decisions which cannot be enforced.” 

After illustrating the defect of the federal government, from wanting judicial 
and executive authority to effectuate its acts, he says : “ Let us then strengthen 
our federal government; let it be possessed of the three principles in full 
extent; and let us condition, that congress shall exercise due authority over 
themselves: legislative, judicial and executive powers may be given to that 
body without endangering the liberty of the subject, since by a right of recall, 
the states can dissolve this authority the moment it is abused: but, where 
legislators in due rotation are governors, and subjects, there seems little danger 
of such abuse. . . . 

“ By giving a supreme executive power to congress in all cases which relate 
to the general good, we should only give that power to ourselves; for the in¬ 
dividuals of the united states, sit there in the persons of their delegates, who 
instead of masters, are honorable servants, dependent on the approbation, 
though supported by the confidence, of their constituents. 

“ It is an adopted maxim throughout America, that none of the states can be 
separately governed without a due exercise of legislative, judicial, and execu¬ 
tive authority. How then can it be expected that all should be governed 
collectively by simple recommendations ? . . . 

“ While the mode of representation in the different states is incorrupt, con¬ 
gress cannot abuse its powers; because it is itself the very essence of such 
representations.” 


470 


THE UNION OF STATES. 


Another writer, advocating the strengthening of the federation with more 
power in the common head, — i. e. ‘ a more perfect union/ — says : “ then 
shall harmony and concord subsist between the thirteen American republics, 
which, when ruled under this common head, will be fully efficient ” [to do a 
number of things which he enumerates]. 

He then notes the apprehension — to show its absurdity — “that Congress, 
when vested with so extensive authority, might employ for enslaving the states 
that power which has been conferred upon them — as the guardians of our 
liberty.” 

A memorial of the merchants of Philadelphia, dated April 6, 1785, thinks 
that “ a recommendation from congress to the states, to vest that body with 
the necessary powers over the commerce of the united states, would be well 
received on their part.” 

Ibid. On the Philadelphia convention. 

The editor speaks of “the convention which is to be held in Philadelphia, in 
May next, for the purpose of revising the federal constitution.” 

Ibid: A circular letter of congress to the states, dated April, 1787, contains 
the following: “ Let it be remembered that the thirteen independent sovereign 
states have, by express delegation of power, formed and vested in us a general, 
though limited sovereignty, for the general and national purposes, specilied in 
the confederation. In this sovereignty they cannot severally participate, (ex¬ 
cept by their delegates) nor with it have concurrent jurisdiction. They then 
go on to reason that the treaty power with which they are vested, enables 
them to bind all the states, and that a state legislature cannot alter or vary a 
treaty,” etc. 

Ibid, for June, 1787. A very able paper,^igned “Harrington,” says: We 
have now the chance to secure for America “ all the benefits of monarchy, 
without parting with any of the privileges of a republic.” He further 
says, “ she may divide her legislature into two or three branches. . . . and 
may confer upon a supreme magistrate such a portion of executive power, 
as will enable him to exhibit a representation of majesty, such as was never 
seen before, for it will be the majesty of a free people. To preserve a sense 
of his obligation to every citizen, he may be elected annually, for seven years, 
or for life. 

“ The more we abridge the states of their sovereignty, and concentrate the 
supreme power in an assembly of the states (for by this name let us call our 
federal government) the more safety, liberty and prosperity will be enjoyed by 
each of the states.” 

Tench Coxe, Esq., in the same number, in an able and extended paper on 
a commercial system, speaks of the “ shameless perseverance of some of the 
states in tender laws, after the value of the paper was gone, and its effect on 
the public credit.” He says: “ It would not be difficult, perhaps, to form a 
new article of confederation to prevent it in future, and a question may arise 
whether fellowship with any state that would refuse to submit, can be satisfac¬ 
tory or safe.” 

Ibid.: An important speech of Hamilton, in assembly of New York, Feb. 18, 
1787, is copiously extracted from. It is in reference to giving congress the 
power over imposts and regulating commerce. ITc refutes the idea of dan¬ 
ger to the integrity and sovereignty of the states, from delegating this and 
other powers to congress. His proposition was defeated by a large majority: 
such was the fear of federal power. 

Extract from a circular letter of Gen. Washington to the Governors of the 
states, on resigning his command, June 18, 178o : 


APPENDIX A. NO. 3. 


471 


“There are four things which I humbly conceive are essential to the well¬ 
being — to the existence of the united states as an independent power — 

“First. An indissoluble union of the states under one federal 

HEAD. 

“ 2nd. A sacred regard for public justice. 

“ 3d. The adoption of a proper peace establishment, and, 

“4th. The prevalence of that pacific and friendly disposition among the 
people of the United States, which will induce them to forget their local preju¬ 
dices and policies ; .to make these mutual concessions which are requisite to the. 
general prosperity, and, in some instances, to sacrifice their individual advan¬ 
tages to the interest of the community.” 

“Under the first head,” he declines to discuss “the principles of the 
Union,” or “the great question,” “whether it be expedient and requisite for 
the states to delegate a larger portion of power to congress or not: ” yet he 
deems it his duty “ to assert and insist upon the following positions; that unless 
the states will suffer congress to exercise those prerogatives, they are undoubt¬ 
edly invested with by the constitution, everything must very rapidly tend to 
anarchy and confusion — that it is indispensable to the happiness of the indi¬ 
vidual states that there should be lodged somewhere a supreme power to regu¬ 
late and govern the general concerns of the confederated republic, without 
which the union cannot be of long duration — that there must be a faithful 
and pointed compliance on the part of every state with the late proposals and 
demands of congress, or the most fatal consequences will ensue — that what¬ 
ever measures have a tendency to dissolve the union, or contribute to violate, 
or lessen the sovereign authority, ought to be considered as hostile to the 
liberty and independence of America, and the authors of them treated accord¬ 
ingly :—and lastly that, unless we can be enabled by the concurrence of the 
states to participate of the fruits of the revolution, and enjoy the essential 
benefits of civil society under a form of government so free and uncorrupted, 
so happily guarded against the danger of oppression as has been devised and 
adopted by the articles of confederation, it will be a subject of regret that so 
much blood and treasure have been lavished for no purpose,” etc. 

Ibid., Aug, 1787. 

Some men think that tyranny can be opposed only in the person of a king; 
but this is a mistake. The “ ardor civium prana jubentium” is as much to be 
dreaded as the “ vultus instantis tyranni .” There are men who are undaunted 
in their opposition to a single tyrant, but are, notwithstanding, the slaves of 
the prejudices and passions of the people. 

Ibid. New Jersey, having failed to comply with the requisition of Septem¬ 
ber, 1785, for supplies, Pinckney, (Chas.) of South Carolina, from Congress, 
and others, were a deputation to New Jersey. Pinckney made a speech to the 
assembly of New Jersey, containing the following: 

“ When these states united, convinced of the inability of each to support a 
separate system, and that their protection and existence depended on their 
union, policy as well as prudence declared the necessity of forming one general 
and efficient government, which, while it protected and secured the whole, 
left to the several states those rights of internal sovereignty , which it was not 
necessary to delegate, and which could be exercised without injury to the 
federal authority. In them were placed all the essential powers which con¬ 
stitute a nation — such as the exclusive rights of peace and war; of sending 
and receiving embassies ; of forming treaties and alliances ; and equipping and 
raising fleets and armies.” He also speaks ot obtaining loans on the faith of 
the United States, and of apportioning to the States their quotas of public 
expenses, etc. 


472 


THE UNION OF STATES. 


Ibid., Sept., 1787. Political Sketches by William Vans Murray , Esq. 

SKETCH III. — ARISTOCRACY. 

“ No right of governing by the representation of constituents of equal rights 
can be called an aristocratic right. Aristocracy proves an inequality of rights : 
Delegated power does not prove, as in the American democracies, an inequality 
of rights; for where the people appoint their own rulers, the rulers, though 
possessed of greater temporary delegated powers, possess no. more rights exclu¬ 
sively that those by whom they were chosen, since the very delegation shows 
an equality between the candidate and constituent: it shows choice, which im¬ 
plies a right of rejection. However varied the modifications of the powers of 
government may be, and however distant they may appear to be, from the mass 
of the people, while the democratic constitution brings back the powers of 
government at stated periods to its source of sovereignty, the people, no 
aristocracy exists. But agreeably to the constitutions of the united states the 
rights of election are frequently exercised : every organ of state sprouts anew 
from the political body of sovereignty. Hereditary honors, hereditary rights 
of ruling, are excluded expressly. Jealousy hath left nothing for implication to 
fashion. No real feature therefore is visible, either in the constitutions or in 
the governments of the United States.” 

SKETCH IV. —EXTENT OF TERRITORY. 

“ Democracy is a government wherein all the members of the society are 
possessed of equal rights, and govern, either by themselves, or by their 
representatives, elected by themselves, and invested with just powers of 
government.” 

Ibid., Sept., 1787. “The constitution framed for the united states of 
America, by a convention of deputies from the states of New Hampshire, 
Massachusetts, Connecticut, etc., etc., at a session begun May 14, and ended 
Sept. 17,1787.” 

Ibid., Sept., 1787. A “Pennsylvania farmer” says: “How may we avert 
the impending dangers ? ” “ Let us adopt that federal constitution which 

is earnestly recommended by a convention of patriotic sages, and which while 
it gives energy to our government, wisely secures our liberties. . . . Having 
once adopted this truly federal form of government, Dean Tucker and all the 
divines of England may prophecy our downfall if they will; we shall not regard 
them.” 

Ibid., Sept., 1787. Letters on the federal government , [written after the fed¬ 
eral instrument was promulgated — this number of the American Museum 
being published some time after September.] By Tench Coxe, Esq. 

When the separation between the two countries was completed by the 
Declaration of Independence, “new governments were necessarily estab¬ 
lished ”—“republican”—“ many of the state constitutions are truly excellent.” 
“Our misfortunes have been that, in the first instance we adopted no na¬ 
tional government at all, but were kept together by common danger only; 
and that in the confusions of a civil war, we framed a federal constitution — 
now universally admitted to be inadequate to the preservation of liberty, prop¬ 
erty and the Union. The question is not, then, how far our state constitutions 
are good or otherwise—the object of our wishes is to amend and supply the 
evident and allowed errors and defects of the federal government.” 

He continues that, in England the king may be an idiot, a tyrant: he cannot 


APPENDIX A. NO. 3. 


473 


be removed: be can do no wrong. “ In America, as the President is to be one 
of the people at the end of his short term, so will he and his fellow citizens 
remember that he was originally one of the people, and that he is created by 
their breath. . . . Whatever of dignity or authority he possesses is a dele¬ 
gated part of their [the people’s] majesty and their political importance, tran¬ 
siently vested in him by the people themselves, for their own happiness.” 

“ As our President bears no resemblance to a king, so we shall see the senate 
have no similitude to nobles. They represent states.” 

“ House ol Representatives. Each member of this truly popular assembly 
will be chosen by about 6000 electors, — poor as well as rich. ... No state 
shall have less than one member.” If hereafter the ratio of representatives 
should exceed the inhabitants of a state “ such state would without this whole¬ 
some provision lose its voice in the house of representatives — a circumstance 
which the constitution renders impossible.” 

Ibid., Oct., 1787. 

In an address by the seceding members of the assembly of Pennsylvania — 
16 in number — the following objections to the new federal plan are urged for 
the people of Pennsylvania to consider. 

Expense of it in addition to that of state government: 

Whether, in case your state government should be annihilated — which will 
probably be the case, or dwindle to a mere corporation — the continental gov¬ 
ernment will be competent to attend to your local concerns. 

Objection to the power of levying and collecting taxes': 

Whether the liberty of the press is a blessing or curse, and is worth a decla¬ 
ration for its preservation: 

Whether in the plan of government there should not be a bill of rights pre¬ 
fixed or inserted: 

Provision against standing army in time of peace is insisted on. 

Whether trial by jury in civil cases ought to be abolished: 

Whether the judiciary of the United States is not so constructed as to absorb 
and destroy the judiciaries of the several states: 

Objection to continental courts for trials between citizens of different states, 
as unnecessary: also to appellate jurisdiction, as to fact as well as law: 

“ The confederation no doubt is defective, and requires amendment and revi¬ 
sion ; and had the convention extended their plan to the enabling the united 
states to regulate commerce, equalize the imposts, collect it throughout the 
united states, and have the entire jurisdiction over maritime affairs — leaving 
the exercise of internal taxation to -the separate states — we apprehend there 
would be no objection to the plan of government.” 

In a sharp and able reply, signed “ Federal Constitution ” is the follow¬ 
ing: 

“ The objections to the federal government are weak, false and absurd. The 
neglect of the convention to mention the liberty of the press arose from a 
respect to the state constitutions, in each of which this palladium of liberty is 
secured, and which is guaranteed to them as an essential part of their repub¬ 
lican forms of government. But supposing this had not been done, the liberty 
of the press would have been an inherent and political right as long as nothing 
was said against it. The convention has said nothing to secure the privilege of 
eating and drinking: and yet, no man supposes that right of nature to be 
endangered by their silence about it.” 

Another most powerful article— signed “One of the People ”— says : “It is 
affirmed [in said address] that the deputies from this state had not power 
to recommend to the people under their appointment, a new constitution 
The deputies from this state were so empowered.” They had power “tr> 
devise, discuss and report such alterations and further provisions as may 


474 


THE UNION OF STATES. 


be necessary to render the federal government fully adequate to the exi¬ 
gencies of the union; . . . alterations in governments are always made by 
the people. 

“ It is said that this constitution will annihilate the state government. On 
what section of the constitution do these men ground their assertion ? It 
breathes nothing like it. It interferes not with the internal government of 
any state. It supports and adds a dignity to every government in the united 
states. 55 

The writer then comments on the objection that congress can levy taxes: 
“ This is a power without which no government can exist. ... It is shameful 
to say that this tax will be collected by soldiers. The power is not given to a 
foreign prince, but to a congress chosen by the people, 55 land of course, deriving 
all its power from them]. 

“ The freedom of the press and trials by jury are not infringed on. The 
constitution is silent, and with propriety too, on these and every other subject 
relative to the internal government of the states. These are secured by the 
different state constitutions. I repeat again, that, the federal constitution does 
not interfere with these matters. Their power is defined and limited by the 
8th section of the first article of the constitution. 

“It is essentially necessary that the judiciary of the United States should 
have an appellate jurisdiction, both in law and fact, in cases of dispute between 
a state and citizen of another state, and between citizens of different states. 55 
[Never yet have I met with a word showing that a transfer of citizenship from 
the state to the united states, was intended or even thought of.] 

In the same number “Impartial 55 says: “We need be under no apprehen¬ 
sions of encroachments upon our liberties from congress, because the principal 
branch of that august body will always be chosen by free and independent 
electors. . . . The interest of the representative will correspond with that of 
his constituents. Every measure that is prejudicial to the people, will be 
equally so to those whom they appoint to govern them — they cannot betray 
their electors without injuring themselves : their power, their official existence 
depends upon the people, hence, instead of adopting measures oppressive to 
the people, the only danger to be apprehended, will arise from their being too 
cautious of giving offence, and being too remiss in the necessary operations of 
government. 55 

Next comes substance of Hon. James Wilson’s speech of Oct. 6, 1787, 
professedly “ to answer the objections which have been raised 55 to the new 
federal plan, Which “ the impressions of four months 5 constant attention to the 
subject 55 enables him to do. 

As to the want of a bill of rights, he says : “ It would have been superfluous 
and absurd to have stipulated with a federal body of our own creation — that 
we should enjoy those privileges of which we are not divested either by the 
intention or the act that has brought that body into existence. 55 [The pith of 
the speech is heretofore quoted. It was copied everywhere, and shows the 
understanding of that day, as much as the articles in the Federalist did.] 

In the same number “Curtius,” under date New York, Sept. 27, 1787, 
speaks of the convention as “ an assemblage of characters most of them illus¬ 
trious for their integrity, patriotism and abilities, representing many sovereign 
states, forming a system of government for the whole, 55 etc. 

The same number contains Letter IY. of Tench Coxe, “ on the federal gov¬ 
ernment. 55 He says: “ In considering the powers 55 of the President, Senate, 
and House of Representatives, “ we have seen a part of the wholesome pre¬ 
cautions which are contained in the new system.” 

“ The united states guarantee to every state in the union a separate repub¬ 
lican form of government. 


APPENDIX A. NO. 3. 


475 


“From thence it follows that any man or any body of men, however rich and 
powerful, who shall make an alteration in the form of government of any state 
whereby the powers thereof shall be attempted to be taken out of the hands of 
the people at large, will stand guilty of high treason; or should a foreign 
power seduce or overawe the people of any state, so as to cause them to vest 
in the families of any ambitious citizens or foreigners, the powers of hereditary 
governors, whether as kings or nobles: that such investment of power would 
be void in itself, and every person attempting to execute them would also be 
guilty of treason. 

“ Thep eople will remain, under the proposed constitution, the fountain of 
power and public honor. The President, the Senate, and the House of Repre¬ 
sentatives will be the channels through which the stream will flow : but it will 
flow from the people, and from them only. Every office, religious, civil and 
military, will be either their immediate gift, or it will come from them through 
the hands of their servants. And this, as observed before, will be guaranteed 
to them under the state constitutions, which they respectively approve, for they 
cannot be royal forms; cannot be aristocratical, but must be republican.” 

Speaking of the prohibition of ex post facto laws, he remarks: “ If a time of 
public contention shall hereafter arrive, the firm and ardent friends of liberty 
may know the length to which they can push their noble opposition on the 
foundation of the laws. Should their country’s cause impel them further, they 
will be acquainted with the hazard, and using those arms which providence has 
put into their hands, will make a solemn appeal to the power above.” [He 
knew the ever-recurring necessity of opposing, and haply fighting against 
human greed and wrong.] 

' “ Henceforth the people of the earth will consider this position as the only 

rock on which they can found the temple of liberty — that taxation and repre¬ 
sentation are inseparable. Our new constitution carries it into effect on the 
most enlarged and liberal scale: for a representative will be chosen by 6,000 of 
his fellow-citizens, a senator by half a sovereign state, a president by a whole 
nation. 

“ The old federal constitution contained many of the same things, which, 
from error or disingenuousness, are urged against the new one. neither of 
THEM HAS A BILL OF RIGHTS, NOR DOES EITHER NOTICE THE LIBERTY OF 

the press, because they are already provided for by the state constitutions; 
and, relating only to personal rights, they could not be mentioned in a contract 
among sovereign states.” 

In reference to the objection to the federal judiciary, he says, “in nineteen 
out of twenty suits at law, the federal courts cannot interfere.” Then he 
speaks of the jurisdiction over “ disputes between citizens of any state, about 
land lying out of the bounds thereof,” or “ when a trial is to be had between 
citizens of one state and citizens of another, or the government of another,” 
the citizen can appeal to a disinterested federal court, and avoid a state court, 
that, perhaps, of his opponent. [Where are the citizens of a nation ?] 

“ Besides the securities for the liberties of the people arising out of the fed¬ 
eral government, they are guarded by their state constitutions and by the 
nature of things in the separate states. The governor or president of each 
commonwealth, the councils, senators, assemblies, judges, [here follow a long 
list of officials] will still be chosen within each state, without any possible inter¬ 
ference of the federal government. The separate states will also choose all the 
members of the legislative and executive branches of the united states. The 
people at large in each state, will choose their federal representatives, and . . . 
the electors of president and vice-president of the union, and lastly the legisla¬ 
tures of the states will have the election of the senate.” 

He then asks if, under these circumstances, betrayal of the country can be 


476 


THE UNION OF STATES. 


feared from a majority of the representatives, eacli chosen by 6,000 freemen, 
or by “ a majority of the senate, each of whom will be chosen by the legislature 
of a free, sovereign and independent state” or by a “ temporary limited execu¬ 
tive officer [elected as above] watched by the federal representatives, by the 
senate, by the state legislatures, by his personal enemies in his own state, by 
the jealousy of the people of the rival states, and by the whole people of the 
Union.” 

Roger Sherman and Oliver Ellsworth, in letter to Governor of Connecticut, 
dated New London, Sept. 26, 1787, say: “The convention endeavored to 
provide for the energy of government on the one hand, and suitable checks on 
the other, to secure the rights of the particular states, and the liberties and 
properties of the citizens. We wish it may meet the approbation of the sev¬ 
eral states, and be a mean of securing their rights, and lengthening out their 
tranquillity.” 

From an address to the citizens of New Jersey on the new constitution, 
Nov. 5, 1787, by “a Jerseyman.” “The power of congress to levy and 
collect taxes, duties, imposts and excises, has been objected to. By whom 
are those taxes to be laid ? by the representatives of the several states in con¬ 
gress ... in perfect conformity to that just maxim in free governments that 
taxation and representation should go hand in hand.” To what purpose are 
these taxes to be applied ? to pay the debts and provide for the common 
defence and general welfare of the united states. 

“ Although I drew my first breath in New Jersey and have continued in it 
during my life, firmly attached to its local interest, yet when I consider the 
impossibility of its existence at present as a sovereign state, without a union 
with the others, I wish to feel myself more a citizen of the United States than 
of New Jersey alone.” 

Ibid., Nov. 1787. The first six letters of the Federalist addressed “to the 
'people of the state of New York ” are published in the November and De¬ 
cember numbers. 

It is sufficient to note here that they advocate a “union of states,” and 
oppose the idea that “ three or four confederacies would be better than one,” 
and consider the plan before them as a confederation of states. In the first 
number, dated New York, Oct. 30, 1787, the author sets his aim forth thus : “ I 
propose in a series of papers to discuss the following interesting particulars — 
the utility of the union to your [the people of New York’s] political prosperity 
— the insufficiency of the present confederation to preserve that union — the 
necessity of a government, at least equally energetic with the one proposed to 
the attainment of this object — the conformity of the proposed constitution to 
the true principles of republican government — its analogy to your own state 
Constitution, — and lastly the additional security which its adoption will afford 
to the preservation of that species of government, to liberty, and to property.” 

Ibid., Nov. 1787. Inhabitants of Fredericksburg, Va., instruct John Daw¬ 
son and James Monroe — present form of government inefficacious — that 
“ the safety, prosperity, and happiness of Virginia as well as the other states 
depend greatly” on adopting “the system recommended by the convention 
of states; ” that the legislature should submit the same to a convention of dele¬ 
gates of the state, Oct. 19, 1787. 

Instructions from the freeholders of Frederic County, Oct. 22, 1787 : 

We conceive “this system to be well calculated to secure to us our inde¬ 
pendence as a nation, and our civil rights as individuals, that without a more 
energetic federal government we cannot exist as a nation: we hence instruct 
you to vote for holding a convention as early as possible, to whose considera¬ 
tion the proposed constitution may be submitted.” 


APPENDIX A. NO. 3. 


477 


Instructions of the inhabitants of Petersburg, Oct. 24, 1787: They say 
they are impressed with incompleteness of the present powers of congress, and 
feel the need of review and amendment of the confederation, and continue : — 
“we are sensible of the difficulty of forming such a plan of government as shall 
at once combine the diversity of interests and secure the rights of the respec¬ 
tive states, subject to the general control of one sovereign authority, [meaning 
that of the associates, through their agency, over the citizens of each, so far as 
the delegated powers go] ; we approve of the proposed plan of the federal con¬ 
stitution, as formed to cement the union of the states, and we recommend im¬ 
mediately calling a convention to consider it.” 

Ibid., Dec. 1787. “In a long and very able address of the minority of 
the Pennsylvania convention, the objections to the federal plan are fully set 
forth. 

“ The new government will not be a confederacy of states, but a consoli¬ 
dated government, founded on the destruction of the several governments of 
the states : ” 

They go on to object that the powers of congress under the new constitution 
— are complete and unlimited over the purse and the sword: 

They speak of the power of taxation. No article is reserved to the state 
government, so that congress may monopolize every source of revenue. And 
congress may make all laws necessary to carry into effect the powers fore¬ 
going, etc.; 

They say that this supremacy is consummated by the “supreme law” clause; 
that the constitution gives the federal government control of the militia ; that 
the judicial power is all absorbing; that trial by jury is not secured in civil 
cases ; that there is no reservation of the rights and privileges of the state gov¬ 
ernments, as in the confederation ; no declaration that the states reserve their 
sovereignty, freedom and independence; 

That the legislative power is so unlimited in its nature, and may be so 
comprehensive and boundless in its exercise, that it will swallow up the state 
governments in the grand vortex of the general empire. 

Many other objections are urged, and the address concludes as follows : “In 
short, consolidation pervades the whole constitution, . . . the preamble begins 
with words, ‘ we the people of the united states/ which is the style of a com¬ 
pact between individuals entering into a state of society; and not that of a 
confederation of states. . . . 

“ Thus we have fully established the position, that the powers vested by this 
constitution in congress, will effect a consolidation of the states under one gov¬ 
ernment, which, even the advocates of this constitution admit, could not be done 
without the sacrifice of all liberty.” 

[American Museum, January, 1788.] 

Edmund Randolph, in a long letter to speaker of the House of Delegates of 
Virginia, stating reasons why he refused to sign the federal plan, hopes Vir¬ 
ginia will be seconded in — 1. Getting ambiguities removed; 2. In rendering 
president ineligible; 3. In taking from him judicial appointments, and filling 
vacancies in recess; 4. In depriving him of pardoning for treason, especially 
before conviction; 5. In drawing line between the powers of congress, and in¬ 
dividual states, and in defining the former so as to leave no clashing of juris¬ 
dictions, or dangerous disputes, and to prevent the one from being swallowed 
up by the other under cover of general words and implication; 6. In abridg¬ 
ing power of senate in making treaties the supreme law of the land; 7. In pre¬ 
venting congress from determining their own salaries, and finally, 8. In limiting 
and defining the judicial power. 


478 


THE UNION OF STATES. 


He clings to the union as the rock of our salvation. 

Meeting of inhabitants of Chowan County, N. C. 

“ This state can have no prospect either of security or honor, but by a firm 
and indissoluble union with the other states in the confederation. We own 
with admiration and gratitude a system formed by the unanimous concurrence 
of twelve states, which attains the great object of a united government ‘to 
establish justice, ensure domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings of liberty to ourselves 
and posterity.’ ” 

They call for an early convention “ to deliberate on the new constitution pro¬ 
posed.” 

The Grand Jury of Edenton, N. C., Nov. 12, 1787, express themselves 
as “ deeply sensible of the necessity of a firm and lasting union among the 
American states, to ensure the common safety and liberty of all. . . . We ad¬ 
mire, in the new constitution, a proper jealousy of liberty mixed with a due 
regard to the necessity of a strong authoritative government. Such a one is 
as requisite for a confederated, as for a single government.” 

They “ earnestly wish ” for a convention which, they say, can adopt or re¬ 
ject. 

[“ A strong authoritative government ” was adopted. It had the power to 
execute its decrees — power of coercion — on citizens, not on states.] 

Letter of Gen. Washington to a friend in Fredericksburg, Ya. 

“ No alternative [in my opinion] between the adoption of it, and anarchy. 
If one state, or a minority of them, should suppose that they can dictate a con¬ 
stitution to the Union, they will find themselves deceived. . . . It or disunion 
is before us to choose from.” 

In a political society, at Richmond, Va., the federal constitution was dis¬ 
cussed — the principal opponent, P. Henry, the leading advocate, Nicholas: 
after three evenings, it prevailed by 128 yeas to 15 nays. “ It is expected 
there will be the same majority in the state convention.” 

Chancellor R. R. Livingston, in oration July 4, 1787, before the society 
of The Cincinnati, New York, said, “our constitution being purely democratic, 
the people are sovereign and absolute. The faults of absolute governments 
are to be charged to the sovereign — in ours they must be traced back to the 
people.” 

Ibid., Feb. 1788. Address to the minority of the convention of Pennsyl¬ 
vania, by “ A Freeman.” [Tench Coxe.] 

“ The consolidation of the united states into one government by the operation 
of the proposed constitution in contradistinction from a confederacy, appears to 
you to be the consequence of the system, and the intention of the framers. 
This is the point of difference I now treat of.” 

He admits that if the parts they have particularized were as represented, 
“ the state sovereignties would indeed be finally annihilated.” “ Appearances,” 
“ have misled you.” “ I shall endeavor to exhibit clear and permanent marks 
and lines of separate sovereignty, which must ever distinguish and circumscribe 
each of the several states, and prevent their annihilations by the federal govern¬ 
ment, or any of its operations.” 

He speaks of “ the crown having been merely a centre of union; the act of 
independence dissolved the political ties .which had formerly existed among the 
states.” 

He then says “ a confederacy of states was the mode of connection, which 
was wisely desired and actually adopted; ” but he says there were appearances 
of consolidation, which he instances, and says, “have deceived said minority— 
they existing iij. the new as they did in the old confederacy.” 

“ The matter will be better understood by proceeding to those points which 


APPENDIX A. NO. 3. 


479 


show that, as under the old, so under the new federal constitution, the thirteen 
united states were not intended to be, and really are not consolidated in such a 
manner as to absorb or destroy the sovereignties of the several states. In 
order to a perfect understanding of each other, it may be proper to observe 
here, that, by your term consolidation, I understand you mean the final annihi¬ 
lation of separate state government, or sovereignty, by the nature and opera¬ 
tions of the proposed constitution. 

“ Among the proofs you adduce of such consolidation being the intention of 
the late convention, is the expression ‘ we the people.’ Though this is a mere 
form of words, it will be well to see what expressions are found in the constitu¬ 
tion in opposition to this, and indicative of the intentions of the convention, 
before we consider those things, which, as I conceive, secure the states from 
a possibility of losing their respective sovereignties. 

‘‘First, then, though the convention propose that it should be the act of 
the people, yet it is to be done in their capacities as citizens of the several 
members of our confederacy — who are declared to be the people of ‘the 
united states’ — to which idea the expression is strictly confined, and the 
general term of America, which is constantly used in speaking of us as a 
nation, is carefully omitted. A pointed view was evidently had to our exist¬ 
ing union [of course, for the phrase ‘a more perfect union’ is used]. But 
we must see at once that the great reason of ‘ the people ’ being mentioned 
was, that alterations of several constitutions were to be effected, which 
the convention well knew, could be done by no authority but that of the people, 
either determining themselves in their several states, or delegating adequate 
powers to their state conventions. Had the federal convention meant to 
exclude the idea of union — that is of several and separate sovereignties joining 
in a confederacy — they would have said ‘ we the people of America: ’ for union 
necessarily involves the idea of competent states, which complete consolida¬ 
tion excludes. But the severalty of the states is frequently recognized in 
the most distinct manner, in the course of the constitution.” He then gives 
instances. 

Let us proceed to evidences against consolidation, of more force than the 
mere form of words. 

It will be found on a careful examination, that many things which are indis¬ 
pensably necessary to the existence and good order of society, cannot be per¬ 
formed by the federal government, but will require the agency and powers of 
the state legislatures or sovereignties, with their various appurtenances or 
appendages, 

“ 1st. Congress, under all the powers of the constitution, can neither train the 
militia, nor appoint the officers thereof. 

“ 2d. They cannot fix the qualifications of electors, etc. 

“3d. In case of vacancy in the senate, or house of representatives, they 
cannot issue a writ for a new election, etc. 

“ 4th. They cannot appoint a judge, constitute a court, or in any other way 
interfere in determining offences against the criminal law of the states. Nor 
can they interfere in civil causes. 

“ 5th. They cannot elect a president, vice-president, a senator, or a federal 
representative, without all of which their own government [the whole federal 
concern] must remain suspended and universal anarchy must ensue [anarchy or 
lack of government only so far as federal government is concerned]. • 

“ 6th. They cannot determine the place of choosing senators, because that 
would be derogatory to the sovereignty of the state legislatures, who are to 
elect them. 

“ 7th. They cannot enact laws for the inspection of the produce of the 
country — an important matter to the commerce of the several states, etc. 


480 


THE UNION OF STATES. 


“8th. They cannot appoint or commission any state officer — executive, 
legislative and judicial. 

“9th. They cannot interfere with the opening of rivers and canals; the 
making or regulation of roads, except post-roads; building bridges; erecting 
ferries; the establishment of state seminaries of learning; libraries; literary, 
religious, trading or manufacturing societies; erecting or regulating the police 
of cities, towns or boroughs; creating new state offices ; building light-houses^ 
public wharves, county jails, markets, or other public buildings; making sale of 
state lands and other state property, or receiving their revenues; executing the 
state laws; altering the criminal laws ; nor can they do any other matter 
or thing appertaining to the internal affairs of any state, whether legislative, 
executive, or judicial, civil or ecclesiastical. 

“ 10th. They cannot interfere with, alter, or amend the constitution of any 
state.” 

In the number for March 1788, “A Freeman” [Tench Coxe] continues: 

“ I pointed out a variety of instances, in which the agency and powers of 
the state governments are absolutely necessary to the existence of civil society, 
and to the execution of the federal constitution itself. I particularized neces¬ 
sary matters to be done, which cannot be done by the general government.” 
Hence — he continues — we find that not only the state powers must exist, but 
that they are indispensable. 

“ Having seen what congress cannot do, let us see what the state govern¬ 
ments must or may do. 

“ First then, each state can appoint every officer of its own militia, and can 
train the same [i. e. the militia], by which it will be sure of a powerful military 
support, attached to, and even part of itself, wherein no citizen of any other 
state can be even a private sentinel, much less have influence or command. 

“ 2d. Every regulation relating to religion, or the property of religious 
bodies, must be made by the state governments, since no powers affecting those 
points are contained in the constitution. 

“ 3d. The state legislatures and constitutions must determine the qualifica¬ 
tions of the electors for both branches of the federal government — and here 
let us remember to adhere firmly, within our respective commonwealths, to 
genuine republican principles. Wisdom, on this point, which [point] lies 
entirely in our hands, will pervade the whole system, and will be a never-failing 
antidote to aristocracy, oligarchy and monarchy. 

“4th. [Regulating descents prohibiting entails — equal division of intestate 
successions, are thought necessary, and the whole subject is said to belong to 
states.] This power, with that mentioned under the last head, if exercised 
with wisdom and virtue, will preserve the freedom of the states, beyond any 
other means. 

“ 5th. The elections of the president, vice-president, senators and representa¬ 
tives are exclusively in the hands of the states — even as to filling vacancies. 
The smallest interference of congress is not permitted, either in prescribing the 
qualifications of electors, or in determining what persons may or may not be 
elected [then are mentioned some regulations, which congress is authorized by 
the states to make]. 

“6th. The states will elect, appoint and commission all their own officers, 
without any possible interference of the federal government. [Senators, repre¬ 
sentatives and president are virtually commissioned by the states, a point too 
seldom mentioned or thought of: — First, they must be citizens of states; 
second, representatives are elected by, and hold certificates of election from 
states, with the states’ broad seals on them. So with senators; and the president 
finds his validity in state records of state action; and all federal officers must go 
back to states in tracing up to the source, their official being.] 


APPENDIX A. NO. 3. 


481 


“7th. The states can alter and amend their several constitutions, provided 
they do not make them aristocratical, oligarchic, or monarchical: for the 
federal constitution restrains tbem from any alterations that are not really 
republican. That is, the sovereignty of the people is never to be diminished or 
destroyed. 

“ 8th. The states have the power to erect corporations for literary, religious, 
commercial, or other purposes, which the federal government cannot prevent. 

“ 9th. Every state can always give its dissent to federal bills, as each has a 
vote in the senate and house of representatives, secured by the Constitution. 
Hence it appears not only that the state governments are intended to remain in 
force within their respective jurisdictions, but they are always to be known to, 
and have their voices as states, in the federal councils. 

“ 10th. The states are not only to elect all their own officers, but they have 
a check by their delegates to the senate, on the appointment of all federal 
officers. 

“ 11th. The states are to hold separate territorial rights, and the domestic 
jurisdiction thereof, exclusively of any interference of the federal government. 

“ 12th. The states will regulate and administer the criminal law. [The 
criminal jurisdiction of the federal government is not very clearly set forth. 
Of course, it must be, in cases excepted out of the jurisdiction of the states, 
by the states themselves, must come from the states, and must be within the 
grants of the federal constitution.] 

“ 13th. The states are to determine all the innumerable disputes about prop¬ 
erty lying within their respective territories between their own citizens — such 
as titles, boundaries, debts, contracts, etc., etc.; none of which can ever be 
cognizable by the federal government. 

“ 14th. The several states can, [here follow a long list of things and 
subjects ‘ of the utmost importance to the happiness of their respective citizens/ 
which the states can do.] 

“In addition to this enumeration of the powers and duties of the state 
governments, we shall find many other instances under the constitution, which 
require, or imply the existence, or continuance, of the sovereignty or severalty 
of the states.” 

“ The following are some of them : 

“All process against criminals, and many other law proceedings, will be 
brought by, and run, in the name of that commonwealth in which the offence or 
event shall have taken place. 

“ The senate will be representatives of the several state sovereignties. 

“ Every state must send its own citizens to the senate and to the house of 
representatives. No man can go thither but from the state of which he is a 
complete citizen, and to which, if they choose, he shall be sworn to be faithful. 

“No state shall on any pretence "be without an equal voice in the senate, 
and a vote in the house of representatives. 

“Any state may repel invasions, or commence a war under emergent 
circumstances, without waiting for the consent of congress. 

“ The electors of the president and vice-president must not nominate more 
than one person of the state to which they respectively belong, so careful is the 
federal constitution to preserve the rights of the states. 

“ In case of an equality of votes in the election of president and vice-presi¬ 
dent, a casting voice is given to the states, from a due attention to their s6ve- 
reignty in appointing the ostensible head of the federal government.” 

He next speaks of “ written communications from the governors of states, 
of the provisions for adjusting differences between states, and between one state 
and the citizens of another — the admission of new states: ” as to this, he says : 
“ As all the territory of each state is already in the union, any district must 

31 


482 


THE UNION OF STATES. 


stand on different ground, when erected into a state from what it did when it 
was counties, or a part of an already existing member of the confederacy.” He 
further says two states may not becbme one, without assent of congress “ show¬ 
ing that the convention held the severalty of states necessary. This is directly 
opposite to your idea that consolidation was intended.” “ Each state and the 
federal justiciary are to give faith and credit to the records and proceedings of 
every other state.” “ Each state has, in the federal constitution, a guaranty of 
a separate republican form of government.” “ Two-thirds of the states in the 
proposed confederacy can call a convention; not two-thirds of the people.” 
“ Three-fourths of the states can alter the constitution, not three-fourths of the 
people.” 

“ From this examination of the proposed constitution for the united states, I 
trust it will appear that, though there are some parts of it, which, taken sepa¬ 
rately, look a little like consolidation, yet there are very many others of a 
nature, which proves that no such thing was intended, and that it cannot ever 
take place. 

“ It is but since the middle of the present century, that the principles and 
practice of free governments have been well understood. . . . The principles 
on which free sovereignties ought to confederate, is quite a new question, and a 
new case. . . . One circumstance has exceedingly obscured the subject and hid- 
the truth from the eyes of many of us. Most of the states being in possession 
of free governments, some have looked for the same forms in a confederating 
instrument which they have justly esteemed in their several social compacts.” 
He then concludes by referring to the distinction between the original social 
compact and the constitution of the league and federal government. 

In the American Museum of April, 1788, is No. III. of the same address to 
the minority of the Pennsylvania convention, by Tench Coxe. 

He says he has heretofore shown “ from the proposed frame of government, 
and the state constitutions,” “ that there is no ground to apprehend a consoli¬ 
dation of the states, which shall join the depending confederacy into one gov¬ 
ernment.” 

He believes, with Mr. Wilson, that “ despotism would be the consequence of 
a single national constitution, in which all the objects of society and government 
were so completely provided for, as to place the several states in the union 
on the footing of counties of the empire. But permit me to ask you, gentle¬ 
men, will such be the condition of the states ? Where is the county that can 
independently train its own militia; appoint its civil and militia officers ; estab¬ 
lish a peculiar system of penal laws; issue criminal process in its own name; 
erect corporations; impose direct taxes, excises and duties; hold lands in its 
own right; commence war on any emergency; regulate descents; prescribe 
the qualifications of electors; alter its constitution or the principles of its 
government; divide itself into separate and independent parts; join itself to 
another state; issue writs for elections and regulate the same ; enact inspection 
laws; erect courts; appoint judges; commission all its officers; create new 
officers; sell and give away its lands; erect fortifications ; and in short where is 
the county in the union, or in the world, that can exercise in any instance 
independent legislative, executive, and judicial powers. 

“ The construction of the senate affords an absolute certainty that the states 
will not lose their present share of separate powers. No state is to lose its 
voice therein without its own consent. Governor Randolph justly observes, 
that the force of the constitution of any state can only be lessened by the ab¬ 
solute grant of its own citizens. Whatever therefore is now possessed will 
remain, unless transferred by new grants.” 

He then mentions the control states will be likely to have over their senators, 
and thinks they may be too partial to the state, to the injury of national 
objects. 


APPENDIX A. NO. 3. 


483 


And, continues he, so independent will the state governments be, that their 
laws on some subjects may oe severer than those of the union: “Treason 
against the united states, for instance, cannot be attended with confiscation 
and corruption of blood; but by the existing laws of all the states, the unoffend¬ 
ing families of attainted persons, stripped of all hereditary rights, and con- 
-demned to the bitter portion of extreme poverty, are left without their friend 
and parent to meet the trials of the world alone, an awful monument of the 
sovereign and avenging power of their native state. Let the representative or 
senator who may-meditate the annihilation of the government of his state, duly 
consider this before it be too late.” 

“ The lordship of the soil is one of the most valuable and powerful appen¬ 
dages of sovereignty: this remains in full perfection with every state. Erom 
them must grants flow. ... To them also as original and rightful proprieta¬ 
ries and lords of the soil, will the estates of extinct families revert.” 

“ Independent revenues and resources are indubitable proofs of sovereignty.”. 
[The power to collect federal revenues is derived from the states : the federal 
functionaries levy taxes, etc., on subjects of taxation within the states, solely 
by virtue of the states’ sovereign authority.] 

“ Impeachment in the several states will afford them opportunities of exert¬ 
ing the most dignified and awful powers of sovereignty. The people of every 
state, by their constitutional representatives, may impeach the public officer, 
however great or daring, who shall presume to violate their exclusive rights, 
or offend against the peace and dignity of their commonwealth; and may punish 
him, on conviction, by fine, imprisonment or death, without any possible inter¬ 
ference of congress. 

“ But, gentlemen, the subject is inexhaustible. Every section in the con¬ 
stitution, as we peruse it, affords new ideas opposed to consolidation. . . . 
Thinking, as you did, consolidation was intended, and would take place, 

. . . you would have been criminal in assenting to the plan proposed.” 

Ibid., 1788, contains an address to the freemen of South Carolina on the 
federal constitution, by Dr. Ramsay : 

“You have at this time, a new federal constitution proposed for your con¬ 
sideration. . . . 

“ First. It is the manifest interest of these states to be united. [The weak¬ 
ness of South Carolina, and the need of protection, are the grounds of his 
appealing to strengthen the federal government.] 

“ . . . Second. If the thirteen states are to be united in reality, as well as 
in name, the obvious principle of the union will be that the congress, or general 
government, should have power to regulate all general concerns. . . _. When 
thirteen persons constitute a family, each should forego everything that is injuri¬ 
ous to the other twelve. . . . When several states combine in one government, 
the same principles must be observed.” 

Ibid., 1788, May No. Letter from Dr. Rush to Dr. Ramsay, speaks of 
“the auspicious event of the ratification of the federal government by six of the 
united states.” 

He says the idea of a bill of rights for the federal constitution has been rea¬ 
soned and ridiculed out of the said states. He speaks of two “ securities for 
liberty” “in the proposed constitution of the united states,” — “representa¬ 
tion and checks.” “Without them a volume of rights would avail nothing; 
and with them a declaration of rights is absurd and unnecessary: for the people 
where their liberties are committed to an equal representation, and to a com¬ 
pound legislature, such as we observe in the new government, will always be 
the sovereigns of their rulers, and hold all their rights in their own hands. To 
hold them at the mercy of their servants is disgraceful to the dignity of free- 


484 


THE UNION OF STATES. 


men. Men who call for a bill of rights have not recovered from the habits 
they acquired under the monarchical government of Great Britain. 

“ I have the same opinion with the anti-federalists, of the danger of trusting 
arbitrary power to any single body of men: but no such power will be com¬ 
mitted to our rulers. Neither the house of representatives nor the senate, nor 
the president, can perform a single legislative act by themselves.” 

Ibid., 1788, May number. Address of Tench Coxe to the members of the 
convention of Virginia. He speaks of the prospective “ erection of Kentucky 
into an independent state, and her becoming another member of the new con¬ 
federacy ; ” and of New Jersey and Delaware as “ the least commercial mem¬ 
bers of the confederacy.” 

Gov. Hancock to the Legislature of Massachusetts, Feb. 27, 1788, after 
stating the ratification of the federal constitution by the convention of Massa¬ 
chusetts, he says “ the objects of the proposed constitution are defence against 
external enemies and the promotion of tranquillity and happiness among the 
states. . . . The amendments proposed, . . . must meet the wishes of the 
states.” He expects an exhibition “on the great theatre of the world, of 
those social, public, and private virtues, which give more dignity to a people 
possessing their own sovereignty, than crowns and diadems afford to sovereign 
princes.” 

Ibid., for June, 1788. Continuation of Tench Coxe’s address to the Vir¬ 
ginia convention: 

“ Should Virginia decline the new confederacy,” Accomac and Northampton 
might wish to join Maryland. 

If you “ wish to see manufactures established in Virginia, . . . you should 
be a part of the new confederacy : ” and several times the phrase “ new con¬ 
federacy ” is used in the address. 

“ Should nine or ten states adopt the constitution, how miserable will be the 
condition of those states who decline it.” 

Arguing for the confederation because of its making the states capable of 
defending themselves against Spain on the south, and England on the north, 
he says : “We have nothing to fear from either of those quarters, provided we 
are united. In this respect the united states, under the new constitution, will 
possess all the advantages in America, which Henry IV. hoped to produce by 
a general league in Europe; with this great difference in our favor, that the 
road to ours is through well-conducted and free councils, independently held 
by the states concerned; and his scheme, however useful and noble the design, 
would necessarily have been effected by force and bloodshed.” 

Ibid., June, 1788. “ Remarks on the proposed system of federal govern¬ 

ment,” by Hon. Hugh Williamson, delegate from North Carolina to the Con¬ 
tinental convention, made to the free men of the county of Chowan and town 
of Edenton, North Carolina. 

On the want of security for the freedom of the press, and of a bill of rights, 
he says the citizens of the states have “ no occasion for a second declaration of 
rights. . . . Their rights in the several states have long since been explained, 
and secured by particular declarations, which make a part of their several con¬ 
stitutions.” 

It is perfectly understood, that “ under the state government-, and under 
that of congress, every right is reserved to the individual, which he has not 
expressly delegated to this, or that legislature. 

“The other objections that have been made are that the new plan absorbs the 
powers of the several states, that the national judiciary is too extensive, that a 
standing army is permitted, that congress is to regulate trade, and that the 
several states are prevented from taxing exports.” 


APPENDIX A. NO. 3. 


485 


He says as to the 1st, That " little power is left to the state: Let us look at 
the code: nine out of ten of the laws are domestic, and must be so. Hitherto 
you have delegated certain powers to the congress, and other powers to the 
assemblies of the states. The portion that you have delegated to congress is 
found to have been useless, because too small. 55 He argues for the new system, 
because it contains a sufficient delegation of powers, and he concludes on the 
point by showing that “the claim of powers 55 in congress endangering states, 
“ is nothing better than the empty whistling of a name. The congress will be 
chosen by yourselves, as your members of assembly are. They will be crea¬ 
tures of your hands, and subject to your advice. Protected and cherished by 
the small addition of power which you shall put into their hands, you may 
become a great and respectable nation. 

“ It is complained that the powers of the national judiciary are too exten¬ 
sive. . . . The powers that are now to be committed to the national legisla¬ 
ture, as they are detailed in the 8th section of the first article, have already 
been chiefly delegated to the congress under one form or another, except those 
which are contained in the first paragraph of that section, and the objects that 
are now to be submitted to the supreme judiciary, or to the inferior courts, are 
those which naturally arise from the constitutional laws of congress. 55 He 
then goes on to show how necessary for justice to “ the citizens of the different 
states, 55 the investiture is. 

. . . “ The line that separates the powers of the national legislature from 
those of the several states is clearly drawn. The several states preserve every 
power that can be exercised for the particular use and comfort of the state. 
They do not yield a single power which is not purely of national concern; nor 
do they yield a single power which is not absolutely necessary to the safety and 
prosperity of the nation, nor one that could be employed to any effect in the 
hands of particular states. The powers of the judiciary naturally arise from 
those of the legislature. 55 

As to the objection of keeping regular troops, he says: “ It is remarkable 
that the same objection has not been made against the original confederation, 
in which the same grievance obtained without the same guards. 55 No appro¬ 
priation for the army, says he, can be made for more than two years. This 
with other obvious safeguards, he thinks enough to prevent danger from stand¬ 
ing troops. He says further: 

“ ... It is the general opinion of my late honorable colleagues, 55 that the state 
of “North Carolina 55 will, under “the proposed system, 55 see “better times. 55 

“ The proposed system is now in your hands, and with it the fate of your 
country. 

“ But if our constituents shall discover faults where we could not find any, 
or if they shall suppose that a plan is formed for abridging their liberties, when 
we imagined that we had been securing botli liberty and property on a more 
stable foundation, they will at least do us the justice to charge those errors to 
the head, and not to the heart. 55 Resolutions, heretofore quoted, of the freemen 
of the county of Chowan, and town of Edenton, were passed after the speech. 

Ibid., June, 1788. A correspondent from Charleston says: “If we wish to 
be a united people, the states must play into each other’s hands as much as 
possible, and do all they can to serve each other, which will cement us together, 
so that we shall not be nominally, but really a united people.” 

“ Philadelphia, June 2d. This day the convention of Virginia meets. 

“The 23d ult. the convention of South Carolina agreed to ratify the new 
federal constitution. The votes on putting the question stood —yeas 149, 
nays 73 —majority 76. A motion made by Gen. Sumter, to postpone the fur¬ 
ther consideration of the constitution, was rejected on the 21st — yeas 89, nays 
135.” 


486 


THE UNION OF STATES'. 


Some amendments were recommended by the convention. The ratification 
was celebrated in Charleston, by a splendid procession. 

‘‘June 19th. A committee of congress have reported, and congress has 
agreed, that it is expedient that Kentucky be erected into an independent 
state.” 

“June 28th. The 21st instant, the federal constitution was agreed to by the 
convention of New Hampshire. The votes were—yeas 57, nays 46.” 

“June 30th. Last Wednesday the convention of Virginia ratified the fed¬ 
eral constitution. Yeas 88, nays 78.” 

Ibid., for July, 1788. Extract from letter of Gen. Washington to the propri¬ 
etors of the ship Federalist, which had been used in the procession at Baltimore, 
“ to solemnize the ratification of the federal constitution by the state of Mary¬ 
land :” “ The unanimity of . . . the state of Maryland, . . . expressed in their 
recent decision on the subject of a general government, will not be without its 
due efficacy, etc. ... I cannot entertain an idea that the voice of the conven¬ 
tion of this state, which is now in session, will be dissonant from that of her 
nearly allied sister across the Potomac.” 

Same number, July 16, 1788, “Numa” proposes mode of election of repre¬ 
sentatives, and says, “when members are thus chosen by the whole state, they 
will consider themselves servants of the whole state.” “ The members of each 
state will be a band of brothers,” and “ will not be swayed by local considera¬ 
tions.” 

Same number, July, 1788, contains resolutions of congress from which the 
following extracts are taken : 

“ Whereas, application has been made to congress by the legislature of Vir¬ 
ginia and the District of Kentucky, for the admission of said district into the fed¬ 
eral union,” and “congress” “aid, on the 3d of June last, resolve that it is 
expedient that the said district be erected into a sovereign and independent 
state, and a separate member of the federal union: ” since that, “ it appearing 
that nine states have adopted the constitution of the united states, lately sub¬ 
mitted to conventions of the people; and whereas, a new confederacy is formed 
among the ratifying states, and there is reason to believe that the state of Vir¬ 
ginia, including the said district, did on the 25th of June last, become a mem¬ 
ber of the said confederacy.” 

They then go on to conclude that, as they are a congress underthe old confed¬ 
eracy, and that the proceedings were had in reference to the old confederacy, 
both congress and the promoters of the new state, shall forbear to act until the 
new regime , and that they shall shape their future course according to that. 

Ibid., July, 1788. Memoranda. “ The new constitution was made and pro¬ 
posed by 12 states ; ratified in Pennsylvania by delegates from 12 counties ; pro¬ 
claimed at Philadelphia at 12 o’clock; on the 12th day of the 12th month ; in 
the 12th year of American independence.” 

Ibid., July, 1788. “New York, July 28, on Saturday evening at 9 o’clock, 
arrived the joyful tidings of the adoption of the new constitution at Poughkeep¬ 
sie, July 25—yeas 30, nays 25, majority 5.” [The truth is the majority 
was only 3, — 30 to 27.] 

“Petersburg, Va., July 24. On Monday last, the convention of North 
Carolina met at Hillsborough. We learn there is a considerable majority 
against the new government; but the supporters have great hopes, since this 
state has acceded to it.” 

Philadelphia, July 12, “interesting crisis;” “thirteen states now repre¬ 
sented in congress.” “ The report of a respectable committee of that honorable 
body to whom were referred the ratifications of the new constitution, which 
have been transmitted to them by the several ratifying states, and other impor- 


APPENDIX A. NO. 3. 


487 


tant matters, engross their attention at present. ... On the question in the 
united states in congress assembled, for putting the new constitution into opera¬ 
tion, there appeared only one dissenting voice.” 

An elector writing from Frederick, Maryland, March 20, 1788, says, in 
conclusion “that all hopes of prosperity under the present confederation have 
subsided . . . that a new form of government is proposed by the authority of 
the people of twelve states in convention, and submitted to the people of each 
state for their separate consideration and adoption; that this constitution may 
be rejected, but amendments can take place previous to its adoption, only in a 
convention of all the states; that after its adoption two-thirds of congress, or 
a convention called at the request of two-thirds of the states, may propose such 
amendments, which shall become parts of the constitution when ratified by 
three-fourths of the states — and shall we not conclude that defective as it may 
be, it is better and safer than none ? We have it in our choice to accept and 
make it what we want it, or reject it and commit ourselves to chance, anarchy, 
and all the evils attendant on political confusion; or peace, order, and pros¬ 
perity are subjects of our election.” 

Ibid., Aug. 1788. Judge Eras. Hopkinson —author of “ Hail Columbia ” — 
writes an allegory, comparing the substitution of the new for the old federal 
plan to the change of an old for a new roof. “ To the 5th objection he an¬ 
swered that, the intention was to make a firm and substantial roof by uniting 
the strength of the thirteen rafters; and that this was so far from annihilating 
the several rafters and rendering them of no use, that it was manifest from a 
bare inspection of the plan, that, the strength of each contributed to the strength 
of the whole, and that the existence of each and all were essentially necessary 
to the whole fabric as a roof. 

“ . . . However the component parts of the roof might be combined, . . . the 
whole must necessarily rest upon and be supported by the walls ” [the people]. 

Ibid., Aug. 1788. “ We learn that the convention of North Carolina have not 

absolutely rejected the new constitution, but have proposed a bill of rights . . . 
and amendments,” which are to be laid before congress and the states before 
North Carolina will ratify. “ The new constitution was discussed clause by 
clause in committee of the whole convention,” and “ the above result was had 
by majority of 102 — yeas 184, nays 82. . . . Through the whole discussion 
on this subject, the convention showed disposition to promote the interest of 
the union, . . . but being previously instructed by their constituents, and 
perceiving objections in the new constitution, they thought themselves justi¬ 
fied in postponing ultimate decision, . . . till it should be reconsidered by the 
several states, and such objections removed, as might be found necessary for the 
preservation of the union.” [She declared 20 rights and proposed 26 amend¬ 
ments. Finally, when she was satisfied her rights would be safe, she ratified.] 

Ibid., for Oct. 1788. Address to the independent electors of the federal 
government by “A Republican,” Boston, July, 1788 : 

“The voice of eleven states, by their representatives in convention, has 
decided in its favor; and a majority of the most important states in the Ameri¬ 
can union, are ready to risk their political happiness on the operation of this 
new system. 

“When you adopt this instrument you have a good mean, an excellent 
instrument; but it is still necessary that you should attend to the use of that 
instrument, and watch vigilantly that it be placed in proper hands.” 

Ibid., same date. “ Thoughts on the constitution of Maryland,” etc., by 
James McHenry: 

“One is disposed to expect happiness and tranquillity in a government 


488 


THE UNION OF STATES. 


founded in actual compact, wherein the people have specified their peculiar 
rights and the rights of the sovereignty.” 

The writer says sovereignty is essential to the existence of a republic, and 
speaks of the general assembly as possessing sovereignty, by which he evidently 
means power of government as representatives of the people: for he, in the 
same passage, speaks of the need of “ frequent elections, to afford the people 
an opportunity to change the trustees of the sovereignty, when of opinion that 
others would execute it more to their satisfaction; and this organization,” he 
continues, “ fixes the deliberative powers with the sovereignty, and the elective 
with the people.” He says again : “ how much to be preferred is the situation 
of a people whose compact, [the social compact] instead of a right to instruct, 
vests them with a right to discontinue! — a right which gives the people 
officient control over the deliberative power; for what delegate or senator, 
desirous to be continued in the sovereignty, wiil venture to act contrary to the 
sense of his electors.” 

Samuel Chase, Esq., afterwards supreme judge of the united states, in an 
address to his constituents in Anne Arundel county, on the right of instruc¬ 
tion says, “ as one of your delegates I hold myself, . . . bound to obey your 
instructions in every case in which you please to give them, or to resign my 
seat.” 

Speaking of a certain subject, he says “ if you have altered your opinion be 
pleased to inform me, and I will give up my private judgment, and endeavor to 
carry in execution your pleasure.” 

“ All lawful authority originates from the people, and their power is like the 
light of the sun, native, original, inherent and unlimited by human authority. 
Power in the rulers or governors of the people, is like the reflected light of the 
moon — and is only borrowed, delegated, and limited by the grant of the people. 
. . . The two branches [of the legislature] have only a derivative and delegated 
power. The people create [them] and vest them with legislative authority, to 
be exercised agreeably to the constitution; and therefore both branches must 
be equally the representatives, trustees, and servants of the people, and the 
people are equally the constituents of both. . . . Our government is a gov¬ 
ernment by representation. The people appoint representatives in the senate 
and house of delegates to transact the business of making laws for them, which 
is impracticable for them to' do in person. From the nature of a government 
by representation, the deputies must be subject to the will of their principals, or 
this manifest absurdity and plain consequence must follow, that a few men 
would be greater than the whole community, and might act in opposition to 
the declared sense of all their constituents.” [This is precisely what has 
occurred in the united states government, i. e., (to use the language of Burke) 
they have “changed from an immediate state of procuration and delegation to a 
course of acting as from original power.” Demosthenes complained for the 
Athenians, “ that the representative has now usurped the right of the people, 
and exercises an arbitrary power over his ancient and natural lord.”] 

“ The right of the people to resist their rulers when they attempt to enslave 
them is paramount, and not derived from the form of government.” 

Ibid., October, 1788. Mr. Mandrillon, of Amsterdam, author of the 
“American Spectator,” in calling attention to the letter of the convention to 
congress, and to the new constitution, uses the following language: 

“As the association of all the states had no other object than the formation 
of a consolidated republic, [?] it was essential to give this union — that is to 
say, to the government of this federal republic — the energy and force requisite 
to accomplish the general design of the league, without derogating from the 
prerogatives which compose the sovereignty and legislative authority of each 
individual member of the confederacy.” 




APPENDIX A. NO. 3. 


489 


Ibid. “ Congress recommended the several states to pass laws to prevent the 
transportation of convicts from foreign countries into the united states. The 
assembly of Connecticut have passed such an act, Oct. 15, 1788.” 

Ibid. “Tribunus ” of Boston, tells what he means by “a free constitution 
and government: ” “ What I mean by a free constitution, is such a form of a 
commonwealth as considers property [rights, individual or state?] existing 
independent of government, and government formed for the support and pro¬ 
tection of it, and that protection flowing from ‘ standing promulgated laws * 
carried into execution by ‘ known and authorized judges,’ and equally and im¬ 
partially applying to each member of the state. I mean, in flue, a form of gov¬ 
ernment established by the people, which secures to them their property as. 
their own against rapine, and under no control of a legislature, and is a law to 
the legislative authority itself.” 

Ibid., Oct., 1788. The citizens of Tarborough addressed Samuel John¬ 
ston, Governor of North Carolina, and President of the convention of North 
Carolina, which postponed ratification, approving the zeal he displayed in try¬ 
ing “ to connect the state of North Carolina to the general union,” and repro¬ 
bating the opposition. 

The governor replies, Sept. 3, 1788, speaking of the endeavors of the 
minority “ to avoid a separation” of the state “ from the counsels of the united 
states,” setting forth that in his opinion “ the citizens of the state have been 
at no time averse to a federal government, but that they evidently preferred 
amendments before accession; ” and expressing the “ hope ” that “ effectual 
means ” will be used “ as soon as possible to replace this state in the union,” 
where alone she “ can be safe and respectable.” 

Ibid., Oct., 1788. Thomas Mifflin, President of Pennsylvania, addressing 
the assembly of that state, says : 

.“The principal difficulties which obstructed the adoption of the federal 
constitution have been happily overcome; the prejudice and Suspicions that 
were awakened by the appearance of that system, have been gradually lulled, 
and we can no longer doubt that all those states which have been successfully 
allied to obtain the independence of America, will again be united in that best 
means of giving strength, dignity, and stability of national character.” 

Ibid., Dec., 1788. Among the select poetry is an ode written for the 
occasion of the federal procession, New York, July, 1788, which contains the 
following: [all these things show how the political arrangement that was then 
being consummated, was understood both by public men, and the public they 
addressed.] 

VERSE IV. 

“ Ten sovereign states in friendship’s league combined, 

Blest with a government whose arms embrace 
The dearest interests of the human race. 

Behold the admired procession move along 
Our sister states, the happy ten, to greet.” 

VERSE VII. 

Discord shall cease and perfect union reign, 

And all confess that sweetly-powerful chain — 

The federal system — which at once unites 
The thirteen states and all the people’s rights. 

Oh may those rights be sacred to the end, 

And to our late posterity descend ; 

That beauteous structure flourish and expand, 

And ceaseless blessings crown this happy land.” 


490 


THE UNION OF STATES. 


American Museum for January, 1789, Nicholas Collin, D. D. & M. A. P. S. r 
writes remarks on the proposed amendments to the federal constitution. 

He speaks of “ thirteen sister republics debating ... on the form of a com¬ 
mon government,” and says some of the proposed amendments “ are repugnant 
to an effectual confederacy.” He says “ the federal government is formed by 
the people, and for the good of the people; its first object is therefore to se¬ 
cure the grand interests of the individuals who compose the states; the second, 
to preserve the political powers of these states, is but of an inferior quality and 
subordinate to the first. It is of the greatest moment to every citizen of 
America to be protected in his life, property, liberty, family and all the 
dear interests of human nature.” [The states are especially important on this 
account, and the federal system was formed by them to enable them to do so. 
They were to protect the citizen, and the federal concern was to protect them 
in so doing.] 

He speaks of certain things that ought to “ be left to the discretion of the 
united states in congress assembled.” 

Ibid., March, 1789. The legislature of Virginia, addressing congress on 
the subject of the convention for amendments, say: “ The good people of this 
commonwealth in convention assembled, having ratified the constitution sub¬ 
mitted to their consideration. ... At the same time that from motives of 
affection to our sister states, the convention yielded their assent to the ratifi¬ 
cation, they gave proofs that they dreaded its operation under the present 
form.” They then mention the required amendments. [All the necessary 
ones were afterwards adopted.] 

Resolution of the assembly of Pennsylvania, on circular letter to the states, 
from Virginia legislature upon amendments. The assembly say they regret 
“ to dissent from the opinion of that assembly upon any point of common con¬ 
cern to the two states, as members of the union.” 

News : Baltimore, Feb. 13. “ The important day in the annals of America 

is past, which conferred on a single citizen those sovereign powers that must 
be placed in one person, to render a nation happy in peace, and prosperous 
in war.” 

Oration, July 4, 1788, by Hon. James M. Varnum, one of the judges of the 
North Western Territory, at Marietta, Ohio: 

After speaking of the articles of confederation as defective, he says: “ And 
but for those friendships which have formed and preserved a union sacred to 
honor, patriotism, and virtue; and but for that superior wisdom which formed 
the new plan of a federal government, now rapid in its progress to adoption, the 
confederation itself, before this day, would have been dissolved.” 

On July 28, 1788, C. W. Hartley (aged 13,) said at York, Pennsylvania, 
in an oration: “Notwithstanding all impediments, the constitution has been 
adopted by ten of the states, and it is expected that the other three will soon 
follow the wise example.” 

Ibid., April, 1789. Fourteen members of the Pennsylvania legislature ad¬ 
dressing their constituents, and other freemen of Pennsylvania, in opposition 
to calling a convention to reform the constitution of Pennsylvania, in so far as 
it is contradictory to the federal constitution, say: “ Because a convention of 
this state with equal authority to that of the convention who framed your con¬ 
stitution, has already adopted the federal constitution, and thereby repealed 
every article of your plan of government which was contradictory to it.” 

They then mention the adoption of the supreme law clause as having this 
effect and proceed as follows: “ How idle and fallacious, then, is the argument 
tor a change in vour plan of government to make it conformable to that of the 
united states, when these very men know that you have already, by the highest 
authority in the state, made the constitution ana the laws of congress paramount 
to all your laws, and your constitution, into the bargain.” 



APPENDIX A. NO. 4. 


491 


They further urge waiting to see if the constitution will not be amended. [I 
quote the above to show what was considered the authority of a convention, 
and that it was the same body organized and authorized by the state, that 
adopted the two constitutions, state and federal.] 

Ibid., for July, 1789. Governor and council of North Carolina addressed 
congratulations to Gen. Washington after he had become president. May 10, 
1789: “Though this state be not yet a member of the union under the new 
form of government, we look forward with pleasing hope to soon becoming 
such, and in the mean time consider ourselves bound in a common interest 
and affection with the other states, waiting only for such alterations as will 
remove the apprehensions of many of the good citizens of this state, for those 
liberties for which they have fought and suffered in common with others.” 
May 10, 1789. 

Signed. Samuel Johnston, Governor. 

James Iredell, Brest, of Council. 

Gen. Washington replies: June 19,1789, that he “considers the letter . . . 
but as indicative of the good dispositions of the citizens of your state towards 
their sister states, and of the probability of their speedily acceding to the new 
general government.” 

He joins them in the hope that the “ union will be as perfect, and more safe, 
than it has ever been.” 

He winds up by saying he is “ impressed with the idea that the citizens of 
your state are sincerely attached to the interest, the prosperity, and the glory 
of America; ” and that he implores Divine guidance in “ the counsels which 
are shortly to be taken by these delegates on a subject of the most momentous 
consequence: I mean the political relation, which is to subsist hereafter, be¬ 
tween the state of North Carolina and the states now in union, under the new 
general government.” 


No. 4. 

THE UNION OF STATES. 

Extracts from Noah Webster's American Magazine , and from the Columbian and 
Massachusetts Magazines , 1787-1789. 


AMERICAN MAGAZINE, 1787-88. 

Published in New York by Noah Webster. The numbers are all bound in one 

volume. 

These extracts are of vast importance, because they are the precise prin¬ 
ciples governing Noah Webster’s political views throughout his long and 
illustrious career; and they afford much aid to enable the descendants of the 
great statesman and philologist in their pious duty of publishing a genuine * 
edition of the great work of their ancestor. The italics are in the text. 

[Extract from the number for January, 1788.] 

“The whole body of people in society is the sovereign power or state; 
which is called the body-politic. Every man forms a part of this state, and so 



492 


THE UNION OF STATES. 


has a share in the sovereignty; at the same time, as an individual, he is a sub¬ 
ject of the state. When a society is large, the whole state cannot meet together 
for the purpose of making laws ; the people therefore appoint deputies or repre¬ 
sentatives — to act for them. When these agents are chosen, and met together, 
they represent the whole state, and act as the sovereign power. . . . The peo¬ 
ple in free governments make their own laws by agents or representatives, and 
appoint the executive officers. An executive officer is armed with the author¬ 
ity of the whole state. ... He cannot do wrong unless he goes beyond the 
bound of the laws.” 

Ibid. “ One of the principal objections to the new federal constitution is, 
that it contains no bill of rights. ... A bill of rights against the encroachment 
of kings and barons, or against any power independent of the people, is per¬ 
fectly intelligible. But a bill of rights against the encroachments of an elective 
legislature, that is, against our own encroachments on ourselves, is a curiosity 
in government. ... In our governments there is no power of legislation inde¬ 
pendent of the people; no power that has an interest detached from that of the 
public. Consequently, there is no power existing against which it is necessary 
to guard. While our legislatures, therefore, remain elective, and the rulers 
have the same interest in the laws that the subjects have, the rights of the peo¬ 
ple will be perfectly secure, without any declaration in their favor. But this 
is not the principal point. I undertake to prove that a standing bill of rights 
is absurd, because no constitutions in a free government can be unalterable. 
The present generation have indeed a right to declare what they deem a privi¬ 
lege ; but they have no right to say what the next generation shall deem a 
privilege. A state is a supreme corporation that never dies. Its powers, when 
it acts for itself, are at all times equally extensive; and it lias the same rights 
to repeal a law this year as it had to make it the last. If, therefore, our pos¬ 
terity are bound by our constitutions, and can neither amend nor annul them, 
they are, to all intents and purposes, our slaves. ... We have no right to say 
that our posterity shall not be judges of their own circumstances. The very 
attempt to make perpetual constitutions, is the assumption of a right to control 
the opinions of future generations, and to legislate for those over whom we 
have as little authority as we have over a nation in Asia. . . . There are, per¬ 
haps, many laws and regulations, which, from their consonance to the eternal 
principles of justice, will always be good and conformable to the sense of a 
nation. But most institutions in society, by reason of an increasing change of 
circumstances, either become altogether improper, or require amendments; and 
every nation has at all times the right of judging of its circumstances, and de¬ 
termining on the propriety of changing its laws.” 

Ibid. Reviewing the Federalist, he says : Concerning the House of Repre¬ 
sentatives, the writer sets forth that “ each state regulates the qualifications of 
its own electors.” 

As to senators, “the appointment is to be made by the state legislatures. 

. . . The equality of representation, which was the result of compromise and 
mutual concessions, establishes the equal sovereignty of each state.” 

“ The executive is clothed with no more power than is necessary to a just 
administration of the laws; nor more than is necessary to secure the rights of 
.the citizens and states.” 

As to the judiciary: “Its powers must necessarily extend to all legal ques¬ 
tions that arise under the constitution and laws of the united states.” 

The reviewer quotes passages (in the Federalist) directed against the present 
attempt to obtain amendments as follows: “ It will require the concurrence of 
thirteen states,” but, the instrument once ratified, nine can do it.. “Every 
constitution for the united states,” says the writer [Hamilton], “ must inevita- 


APPENDIX A. NO. 4. 


493 


bly consist of a great variety of particulars, in which thirteen independent states 
are to be accommodated in their interests, or opinions of interest. . . . Hence, 
the necessity of moulding and arranging all the particulars, which are to com¬ 
pose the whole, in such a manner as to satisfy all the parties to the compact; 
and hence, also, an immense multiplication of "difficulties and casualties in ob¬ 
taining the collective assent to a final act. The degree of that multiplication 
must evidently be, in a ratio to the number of particulars, and the number of 
parties.” 

Ibid., for February. “The representative of a people is, as to his powers, 
in the situation of an attorney, whose letters commission him to do everything 
which his constituent could do, were he on the spot.” [i. e. if his powers 
were general; if specific, he would be confined thereto.] 

“ The individuals who compose a political society or state have a sove¬ 
reign right to establish what form of government they please in their own 
territory.” 

In review of the Federalist, Montesquieu’s idea, that republican government 
is only fit for small territory, is combated: “ By the modern practice of repre¬ 
sentation, a very large extent of countrv may be governed by the republican 
form ; and even Montesquieu himself admits that a confederation of republics 
may be so formed as to unite the happiness of free states with the vigor of 
monarchies. The new constitution may be an improvement on the Lycian 
league, which that writer proposes as a model.” 

Ibid. The editor, Noah Webster, says, in reply to objections: That the fed¬ 
eral constitution “ will preserve our equal republican forms of government, nay 
that it is their only firm support, and the guarantee of their existence. And, 
if they consent to the additions and alterations proposed by the Massachusetts 
convention, it is not so much because they think the constitution will be the 
better for them, but, because they think these additions will reconcile the op¬ 
position, and unite all parties.” 

Ibid., June, “American intelligence.” “In convention of the people of 
South Carolina, by their representatives held,” etc.: — 

“ The convention having maturely considered* the constitution, or form of 

f overnment, reported ... by the convention, etc., ... do, in the name, and 
ehalf of the people of this state, hereby assent to, and ratify, the said con¬ 
stitution. . . . Done in convention, the 23d of May,” etc. 

News is given of the ratification by New Hampshire — yeas 57, nays 46, 
majority 11 . “On the arrival of this important intelligence — the ratification 
by the ntsth state, the citizens of New York testified their joy by the ring¬ 
ing of bells and firing of cannon.” 

It is announced that “the convention of the state of New York has just met, 
Gov. Clinton, president, — and that they have determined to discuss the con¬ 
stitution by paragraphs.” 

“ State of New Hampshire. In convention of the delegates of the people of 
the state of New Hampshire, June the 21st, 1788 : The convention having im¬ 
partially discussed, and fully considered, the constitution for the united states 
of America, reported to congress by the convention of delegates, etc., and 
submitted to us by resolution of the general court of this state, . . . do, in 
the name and behalf of the people of "the state of New Hampshire, assent to 
and ratify,” etc. 

Ibid., An?., 1788. “Letter dated Richmond, August 6, says the con¬ 
vention of North Carolina had rejected the new constitution by a majority 
of 100. New York rejected the proceedings, and Georgia refused to send 
delegates to the first congress. And yet, both of these states, two years 


494 


THE UNION OF STATES. 


afterwards, were foremost in zeal and activity in supporting the indepen¬ 
dence of the united states.” 

“ Delegation to congress from Massachusetts. The Massachusetts general 
court, Nov. 4, 1788, decided: ” 

1. That the electors for president, etc., are to be chosen by the two houses 
on joint ballot; 

2. That the senators shall be chosen by the two houses, each having a 
negative on the other ; 

3. That the commonwealth be divided into eight districts — the inhabitants 
of each choosing a representative. 

“The state of New Hampshire has chosen Langdon and Bartlette for 
federal senators.” 

“ Edmond Randolph has resigned the governorship of Virginia, to go into 
the house of representatives to explain and defend the federal constitution to 
the legislature.” 


COLUMBIAN MAGAZINE, 1786-89. 

The Columbian Magazine of December, 1786, strongly argues for a “new 
federal system,” as follows : 

“We preclude ourselves from the means of calling forth our national 
strength and resources, by harboring absurd jealousies of the great national 
council. We withhold powers necessary to render the federal government 
efficient, and to unite the various interests of the several states. . . . Each state 
is induced to arrogate to itself individually, that portion of sovereignty, which 
it ought only to exercise in conjunction with others, as a part of one common¬ 
wealth— the empire of the united states. . . . Our political difficulties have 
been principally occasioned by the want of powers in congress adequate to the 
government of the united states. Let these be granted,” etc. 

From the Columbian Magazine, Sept., 1787: “The proposed plan of a 
federal constitution is sanctioned by the federal convention, thus: ‘ Done in 
convention by the unanimous consent of the states present, the 17th day of 
September/ etc., etc.; and thfe project is signed by states.” 

The following is an extract from the journal: 

“In convention, Monday, Sept. 17, 1787: present, the states of New 
Hampshire, Massachusetts, Connecticut, Mr. Hamilton, from New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South 
Carolina, and Georgia: 

“ Resolved, that the preceding constitution,” etc. They then go on to rec¬ 
ommend that it be submitted in each state to a convention elected by the 
people thereof, and “that as soon as the conventions of nine states shall 
have ratified it,” the congress shall provide for starting it into effect. 

Ibid., March, 1788. Extracts from letter of Gen. Washington, Eeb. 28, 
1788. “ The adoption of the constitution in Massachusetts will, I presume, 

be greatly influential in obtaining a favorable determination upon it in those 
states where the question is yet to be agitated. No person can, at this 
moment, pretend to say what will .be its fate here. But from what I can 
collect, I have no doubt of its being accepted.” 

A letter from Baltimore, dated April 28, says: “ Our convention have 
adopted the new government by a great majority of votes — 63 to 11. To¬ 
morrow it is to be ratified in form.” 

“ Soutli Carolina: In convention May 23, a motion was made and seconded, 
* That this convention do assent to, and ratify, the constitution agreed to, on 
the 17th of September last, by the convention of the united states of America, 




APPENDIX A. NO. 4. 


495 


held at Philadelphia.’ The yeas and nays being called for — were ayes 149, 
nays 73, majority 76.” 

Ibid., July, 1788. “On Friday, July 4, 1788, the citizens of Philadelphia 
commemorated American independence, and the ratification of the federal con¬ 
stitution by ten of the united states.” At a previous meeting of the citizens, 
they had agreed “ to celebrate the adoption of the federal constitution on the 
fourth of July, provided nine states had then entered into the union under 
the new system. When this agreement took place, eight states had an¬ 
nounced their ratifications, and the conventions of the states of New Hamp¬ 
shire, Virginia and New York were in session.” Unfavorable rumors caused 
much anxiety and suspense. “ At length the ratification of New Hampshire 
was received, . . . and on the evening of the second of July, the account of 
the ratification by Virgmia arrived; the satisfaction of the people was made 
complete, and the tenth 'pillar triumphantly added to the federal edifice. . . . 
Ten ships were anchored in the Delaware, to represent the ten states that have 
adopted the constitution. . . . Ten flags, borne by ten gentlemen, represented 
the ten states that have adopted the constitution.” James Wilson made the 
speech, saying: “In state after state, at time after time, it was ratified—in 
some states unanimously.” 

Ibid., Dec., 1788. “The state of Pennsylvania has passed a law for elect¬ 
ing representatives to congress, under the new constitution, . . . and also for 
the election of electors for president.” 

Ibid., Dec., 1789. “Twelfth federal pillar — North Carolina. It 
is with a great degree of satisfaction we announce to the public the ratifi¬ 
cation of the constitution of the united states by the respectable state of 
North Carolina.” The statement continues — that it was on the 20th of No¬ 
vember— “vote, yeas 193, nays 75, majority 118.” 

It had been rejected by the same state "August 1, 1788, by a majority of 
100, i. e., 188 to 88. 

[Extracts from the Massachusetts Magazine for March, 1789.] 

These extracts are added, to show what the leaders and the people then un¬ 
derstood the American polity to be. The constitution had then been adopted, 
and the government provided for had been elected, or was being so; and it 
was -in that or the following month to go into operation. 

The absolute integrity and sovereignty of the states as makers and members 
of, and actors in, the union, are taken for granted throughout. 

“ Summary of American news and politics.” 

“ New Hampshire. This state is now engaged in her domestic elections,” 
etc. [In the previous number she was said to have “completed” “her federal 
elections.”] 

“Massachusetts also engaged in her state elections. . . . Seven of the 
federal representatives of this state are chosen,” etc. 

“ Connecticut. Every day adds to the progress this state is making in 
manufactures,” etc. She is complimented on the peaceful and “ federal char¬ 
acter of her citizens.” _ t . 

“ New York. This state, as we mentioned in our last, is still torn by the 
feuds of faction.” It is further said that “the assembly adjourned ” “without 
appointing federal senators.” “ The choice of federal representatives for this 
state commenced the 3d instant.” 

“ New Jersey.” “ Messrs. Schureman, Cadwallader, Boudmot and Srn- 
nickson are elected ” “ representatives for that state. 

“ Pennsylvania. The federal character of this state is further exalted,” 

etc., etc. 


496 


the union of states. 


“Delaware. Of this state, we know but little. Her federal elections are 
completed, and, enjoying the reputation of being the first which acceded to the 
new government, she does not appear anxious to engage in the discussion of 
those great political points, which have created so much uneasiness in some of 
her sister states.” 

“ Maryland. This state is holding out inducements to congress to make 
Baltimore the place of their residence,” etc. 

“ Virginia. This state has at length completed its choice of ten representa¬ 
tives — eight of whom are said to be federalists,” etc. 

“ South Carolina and Georgia. From these states we have received no 
other information since our last, than that their electors have given a unani¬ 
mous vote in favor of his Excellency George Washington, Esq., as president 
of the united states, by which the memorable circumstance is authenticated 
that the voice of the whole continent has called our Fabius Maximus once 
more to rescue our country from the inauspicious ills that have threatened 
her.” 

“Vermont. This state has expressed a wish to be admitted a member of 
the union,” etc. 

“ Rhode Island. This foreign state has again refused to accede to a union 
with her late sisters. . . . Anxious of enjoying the protection of the union, 
the inhabitants of Newport, Providence, and other places are determined to 
sue for its protection, and to be annexed to Massachusetts or Connecticut — 
thereby to evince to their perverse legislature, that unless they take measures 
for a speedy adoption of the constitution their boasted sovereignty as an inde¬ 
pendent state, will ere long be at an end.” 

“ North Carolina. This other foreign state, has lately evinced a disposi¬ 
tion to become a member of the united states,” etc. 


APPENDIX B 


THE CONSTITUTION OF THE UNITED STATES. 

'WITH THE PARTIES TO IT, THE AMENDMENTS, AND THE DIFFERING 
PROVISIONS OF THE CONFEDERATE CONSTITUTION *OF 1861 . 

The object of this appendix is twofold: not only is it to give a full copy of 
the present federal constitution, but to exhibit the changes made by the con¬ 
federate states in their attempt to establish and enjoy federal liberty. Some 
of the changes were purposed to make more plain the real meaning of the con¬ 
stitution of 1788, according to the southern view; and others to make the 
federal system more conservative of liberty and human rights, and more effec¬ 
tive in harnessing power and preventing usurpation. 

Both the federal and confederate constitutions were lifeless plans as to a 
given state until the breath of life was breathed into it by that state. 

The federal was originally adopted by thirteen states, containing less than 
four millions of people; while the confederate was adopted by nearly the same 
number of states, containing eleven or twelve millions of people. 

It is not necessary to note the constant change of “united” for “ confeder¬ 
ate ” to the intelligent reader. 

Precisely where the substitution of the confederate change begins, is desig¬ 
nated by a star. 

The only acts in American history or records which ever gave any life or 
validity to the federal constitution are affixed. They were enacted or ordained 
by each state in its own exclusive convention, which spoke its own exclusive 
mind. Webster forever settled this point in his self-stultifying speech of 1833, 
as follows: “ Until the constitution was ratified by nine states, it was but a 
proposal — the mere draft of an instrument. It was like a deed drawn but 
not executed; ... it was inoperative paper; ... it had no authority; it 
spoke no language.” 

Of course the enacting or ordaining words affixed, spoke it into life and 
validity; and the object here is to enable the people to see and know it. 

THE CONSTITUTION OF THE UNITED STATES. 

We, the people of the united states, in order to form a more perfect union, 
establish justice, insure domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings of liberty to ourselves 

32 



498 THE CONSTITUTION OF THE UNITED STATES. 


and our posterity, do ordain and establish this constitution for the united 
states of America. 

[We, the people of the confederate states, each state acting in its sovereign and independent 
character, in order to form a permanent federal government, establish justice, insure domestic 'tran¬ 
quillity, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and 
guidance of Almighty God, do ordain and establish this constitution for the confederate states of 
America.] 


ARTICLE I. 

SECTION I. ' 

All legislative powers herein * granted shall be vested in a congress of the 
united states, which shall consist of a senate and house of representatives. 

[“ delegated ” is used instead of “ granted ” in the confederate instrument.] 


SECTION II. 

1. The house of representatives shall be composed of members chosen every 
second year by the people of the several states, and the electors in each state 
shall * have the qualifications requisite for electors of the most numerous branch 
of the state legislature. 

[be citizens of the confederate states. But no person of foreign birth, and not a citizen of the 
confederate states, shall be allowed to vote for any officer, civil or political, state or federal.] 

2. No person shall be a representative who shall not have attained to the 
age of twenty-five years, and * been seven years a citizen of the united states,, 
and who shall not, when elected, be an inhabitant of that state in which he 
shall be chosen. 

[be a citizen of the confederate states.] 

3. Representatives and direct taxes shall be apportioned among the several 
states which may be included within this union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three-fifths of all other persons. The actual enumeration 
shall be made within three years after the first meeting of the congress of the 
united states, and within every subsequent term of ‘ten years, in such manner 
as they by law shall direct. The number of representatives shall not exceed 
one for every thirty thousand, but each state shall have at least one representa¬ 
tive ; and until such enumeration shall be made, the state of New Hampshire 
shall be entitled to choose three; Massachusetts, eight; Rhode Island and 
Providence Plantations, one; Connecticut, five; New York, six; New Jersey, 
four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North 
Carolina, five; South Carolina, five, and Georgia, three. 

[“ confederacy ” is substituted for “union” in the beginning; lower down “ slaves ” for “other 
persons; ” still lower “ fifty ” is substituted for “ thirty; ” and finally, from the words “ the state of,’* 
the conclusion of the article is as follows: “ South Carolina shall be entitled to choose six; the state 
of Georgia, ten; the state of Alabama, nine ; the state of Florida, two; the state of Mississippi, seven; 
the state of Louisiana, six, and the state of Texas, six.”] 

4. When vacancies happen in the representation from any state, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

5. The house of representatives shall choose their speaker and other officers; 
and shall have the sole power of impeachment.* 

[except that any judicial or other federal officer resident or acting solely within the limits of any 
state, may be impeached by a vote of two-thirds of both branches of the legislature thereof.] 


APPENDIX B. 


490 


SECTION III. 

1. The senate of the united states shall be composed of two senators from 
each state, chosen by the legislature thereof, for six years; * and each senator 
shall have one vote. 

[at the regular session next immediately preceding the commencement of the term of service; and 
each senator shall have one vote.] 

2. Immediately after they shall be assembled in consequence of the first 
election, they shall be divided as equally as may be into three classes. The 
seats of the senators of the first class shall be vacated at the expiration of the 
second year; of the second class at the expiration of the fourth year, and of 
the third class at the expiration of the sixth year, so that one-third may be 
chosen every second year; and if vacancies happen by resignation, or other¬ 
wise, during the recess of the legislature of any state, the executive thereof 
may make temporary appointments until the next meeting of the legislature, 
which shall then fill such vacancies. 

3. No person shall be a senator who shall not have attained to the age of 
thirty years,* and been nine years a citizen of the united states, and who shall 
not, when elected, be an inhabitant of that state for which he shall be chosen. 

[and be a citizen of the confederate states, and who shall not, when elected, be an inhabitant of 
the state for which he shall be chosen.] 

4. The vice-president of the united states shall be president of the senate, 
but shall have no vote unless they be equally divided. 

5. The senate shall choose their other officers, and also a president pro 
tempore, in the absence of the vice-president, or when he shall exercise the 
office of president of the united states. 

6. The senate shall have the sole power to try all impeachments. When 
sitting for that purpose, they shall be on oath or affirmation. When the 
president of the united states is tried, the chief justice shall preside; and no 
person shall be convicted without the concurrence of two-thirds of the members 
present. 

7. Judgment in cases of impeachment shall not extend further than to 
removal from office, and disqualification to hold and enjoy any office of honor, 
trust, or profit under the united states; but the party convicted shall never¬ 
theless be liable and subject to indictment, trial, judgment, and punishment, 
according to law. 

SECTION IV. 

1. The times, places, and manner of holding elections for senators and rep¬ 
resentatives shall be prescribed in each state by the legislature thereof; * but 
the congress may at any time by law make or alter such regulations, except as 
to the places of choosing senators. 

[“ subject to the provisions of this constitution,” are the confederate words to go in here.] 

2. The congress shall assemble at least once in every year, and such meeting 
shall be on the first Monday in December, unless they shall by law appoint a 
different day. 

SECTION v. 

1. Each house shall be the judge of the elections, returns, and qualifications 
of its members, and a majority of each shall constitute a quorum to do business; 
but a smaller number may adjourn from day to day, and may be authorized to 
compel the attendance of absent members, in such manner and under such 
penalties, as each house may provide. 


500 THE CONSTITUTION OF THE UNITED STATES. 


2. Each house may determine the rules of its proceedings, punish its mem¬ 
bers for disorderly behavior, aud with the concurrence of two-thirds,* expel a 
member. 

[“ of the whole number,” are the confederate words.] 

3. Each house shall keep a journal of its proceedings, and from time to time 
publish the same, excepting such parts as may in their judgment require 
secrecy; and the yeas aud nays of the members of either house on any ques¬ 
tion shall, at the desire of one-fifth of those present, be entered on the journal. 

4. Neither house, during the session of congress, shall, without the consent 
of the other, adjourn for more than three days, nor to any other place than 
that in which the two houses shall be sitting. 

SECTION VI. 

1. The senators and representatives shall receive a compensation for their 
services, to be ascertained by law, and paid out of the treasury of the united 
states. They shall in all cases except treason, felony,* and breach of the peace, 
be privileged from arrest during their attendance at the session of their re¬ 
spective houses, and in going to and returning from the same; and for any 
speech or debate in either house, they shall not be questioned in any other 
place. 

[the word *• felony ” is left out of the confederate instrument.] 

2. No senator or representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the united states, 
which shall have been created, or the emoluments whereof shall have been 
increased during such time; and no person holding any office under the united 
states, shall be a member of either house during his continuance in office. 

[but congress may, by law, grant to the principal officer in each of the executive departments a 
seat upon the floor of either house, with the privilege of discussing any measures appertaining to his 
department.] 

SECTION VII. 

1. All bills for raising revenue shall originate in the house of representatives; 
but the senate may propose or concur with amendments as on other bills. 

2. Every bill which shall have passed the house of representatives and the 
senate, shall, before it becomes a law, be presented to the president of the 
united states; if he approve he shall sign it, but if not he shall return it with 
his objections, to that house in which it shall have originated, who shall enter 
the objections at large on their journal, and proceed to reconsider it. If after 
such reconsideration two-thirds of that house shall agree to pass the bill, it 
shall be sent, together with the objections, to the other house, by which it 
shall likewise be reconsidered, and if approved by two-thirds of that house, 
it shall become a law. But in all such cases the votes of both houses shall be 
determined by yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each house respectively. If 
any bill shall not be returned by the president within ten days (Sundays ex¬ 
cepted) after it shall have been presented to him, the same shall be a law, in 
like manner as if he had signed it, unless the congress by their adjournment 
prevent its return, in which case it shall not be a law.* 

[The president may approve any appropriation and disapprove any other appropriation in the 
same bill. In such case he shall, in signing the bill, designate the appropriations disapproved, and 
shall return a copy of such appropriations with his objections to the house in which the bill shall 
have originated, and the same proceedings shall then be had as in case of other bills disapproved by 
the president.] 


1 


APPENDIX B. 501 

3. Every order, resolution, or vote to which the concurrence of the senate 
and house of representatives may be necessary (except on a question of adjourn¬ 
ment), shall be presented to the president of the united states; and before the 
same shall take effect, shall be approved by him, or being disapproved by him, 
shall be repassed by two-thirds of the senate and house of representatives, 
according to the rules and limitations prescribed in the case of a bill. 

SECTION VIII. 

The congress shall have power : — 

1. To lay and collect taxes, duties, imposts, and excises,* to pay the debts 
and provide for the common defence and general welfare of the united states; 
but all duties, imposts, and excises shall be uniform throughout the united 
states. 

[for revenue necessary to pay the debts and provide for thevcommon defence, and carry on the 
government of the confederate states; but no bounties shall be granted from the treasury; nor 
shall any duties or taxes on importations from foreign nations be laid to promote or foster any 
branch of industry; and all duties, imposts, and excises shall be uniform throughout the confederate 
states.] 

2. To borrow money on the credit of the united states; 

3. To regulate commerce with foreign nations, and among the several states, 
and with the Indian tribes; * 

[but neither this nor any other clause contained in the constitution shall ever be construed to 
delegate the power to congress to appropriate money for any internal improvement intended to 
facilitate commerce, except for the purpose of furnishing lights, beacons, and buoys, and other aids 
to navigation upon the coasts, and the improvement of harbors, and the removing of obstructions in 
river navigation, in all which cases such duties shall be laid on the navigation facilitated thereby as 
may be necessary to pay the costs and expenses thereof.] 

4. To establish a uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies, throughout the united states; * 

[but no law of congress shall discharge any debt contracted before the passage of the same.] 

“ uniform laws of naturalization ” are words substituted in the confederate instrument for “ a 
uniform rule of naturalization.”] 

5. To coin money, regulate the value thereof, and of foreign coin, and fix 
the standard of weights and measures; 

6. To provide for the punishment of counterfeiting the securities and current 
coin of the united states; 

7. To establish post-offices and post-roads; 

8. To promote the progress of science and useful arts, by securing for 
limited times to authors and inventors the exclusive right to their respective 
writings and discoveries; 

9. To constitute tribunals inferior to the supreme court; 

10. To define and punish piracies and felonies committed on the high seas, 
and offences against the law of nations; 

11. To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water; 

12. To raise and support armies, but no appropriation of money to that use 
shall be for a longer term than two years; 

13. To provide and maintain a navy; 

14. To make rules for the government and regulation of the land and naval 
forces; 

15. To provide for calling forth the militia to execute the laws of the union, 
suppress insurrections and repel invasions; 

16. To provide for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the service of the united 


502 THE CONSTITUTION OF THE UNITED STATES. 


states, reserving to the states respectively the appointment of the officers, and 
the authority of training the militia according to the discipline prescribed by 
congress; 

17. To exercise exclusive legislation in all cases, whatsoever, over such 
district (not exceeding ten miles square) as may, by cession * of particular 
states, and the acceptance of congress, become the seat of the government of 
the united states, and to exercise like authority over all places purchased by 
the consent of the legislature of the state in which the same shall be for the 
erection of forts, magazines, arsenals, dock-yards, and other needful buildings; 
and 

[of one or more states.] 

18. To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this constitu¬ 
tion in the government of the united states, or in any department or officer 
thereof. 


section is. 

1. The migration or importation of such persons as any of the states now 
existing shall think proper to admit, shall not be prohibited by the congress 
prior to the year one thousand eight hundred and eight, but a tax or duty may 
be imposed upon such importation, not exceeding ten dollars for each person.* 

[1. The importation of negroes of the African race from any foreign country other than the slave¬ 
holding states or territories of the united states of America is hereby forbidden; and congress is 
required to pass such laws as shall effectually prevent the same.] 

2. Congress shall also have the power to prohibit the introduction of slaves from any state not a 
member of, or territory not belonging to this confederacy.] • 

2. The privilege of the writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the public safety may require it. 

3. No bill of attainder or ex post facto law * shall be passed. 

[or law denying or impairing the right of property in negro slaves.] 

4. No capitation, or other direct tax, shall be laid, unless in proportion to 
the census or enumeration herein before directed to be taken. 

5. No tax or duty shall be laid on articles exported from any state.* No 
preference shall be given by any regulation of commerce or revenue to the 
ports of one state over those of another; nor shall vessels bound to, or from 
one state, be obliged to enter, clear, or pay duties in another. 

[except by a vote of two-thirds of both houses.] 

6. No money shall be drawn from the treasury, but in consequence of 
appropriations made by law; and a regular statement and account of the 
receipts and expenditure of all public money shall be published from time to 
time. 

7. No title of nobility shall be granted by the united states; and no person 
holding any office of profit or trust under them, shall without the consent of 
congress, accept of any present, emolument, office, or title of any kind what¬ 
ever, from any king, prince, or foreign state. 

[In this section the numbering is somewhat changed, but the text of both instruments is the same, 
except in the places noted. Clauses 9 and 10 of the confederate instrument are as follows: 9. Con¬ 
gress shall appropriate no money from the treasury except by a vote of two-thirds of both houses 
taken by yeas and nays, unless it be asked and estimated for by some one of the heads of depart¬ 
ments, and submitted to congress by the president; or for the purpose of paying its own expenses 
and contingencies ; or for the payment of claims against the confederate states, the justice of which 
shall have been judicially declared by a tribunal for the investigation of claims against the govern¬ 
ment, which it is hereby made the duty of congress to establish.] 

[1(J. All bills appropriating money shall specify in federal currency the exact amount of each 
appropriation, aud the purposes for which it is made; and congress shall grant no extra compensa- 


APPENDIX B. 


503 


tion to any public contractor, officer, agent, or servant after such contract shall have been made or 
such service rendered.] 

[Clauses 11-19 inclusive in this section of the confederate instrument, are amendments 1-8 inclu¬ 
sive in the federal compact. Clause 20 concludes the section in the former, as follows: “20. Every 
law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed 
in the title.”] 


SECTION X. 

1. No state shall enter into any treaty, alliance, or confederation, grant 
letters of marque or reprisal; coin money; emit bills of credit; make anything 
but gold and silver coin a tender in payment of debts; pass any bill of attainder, 
ex post facto law, or law impairing the obligation of contracts, or grant any 
title of nobility. 

[The confederate instrument leaves out the words “ emit bills of credit.”] 

2. No state shall, without the consent of the congress, lay any imposts or 
duties on imports or exports, except what may be absolutely necessary for 
executing its inspection laws; and the net produce of all duties and imposts, 
laid by any state on imports or exports, shall be for the use of the treasury of 
the united states; and all such laws shall be subject to the revision and control 
of the congress. 

3. No state shall, without the consent of congress lay any duty of tonnage,* 
keep troops or ships of war in time of peace, enter into any agreement or 
compact with another state, or with a foreign power, or engage in war, unless 
actually invaded, or in such imminent danger as will not admit of delay.f 

[except on sea-going vessels for the improvement of its rivers and harbors navigated by the said 
vessels; but such duties shall not conflict with any treaties of the confederate states with foreign 
nations. And any surplus of revenue thus derived, shall, after making such improvement, be paid 
into the common treasury; nor shall any state] 

t [but when any river divides or flows through two or more states, they may enter into compacts 
with each other to improve the navigation thereof.] 


ARTICLE II. 

SECTION I. 

1. The executive power shall be vested in a president of the united states 
of America. He * shall hold his office during the term of four years, and, 
together with the vice-president, chosen for the same term, be elected as 
follows: — 

[and the vice-president shall hold their offices for the term of six years; but the president shall 
not be re-eligible.] 

2. Each state shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of senators and repre¬ 
sentatives to which the state may be entitled in the congress; but no senator 
or representative, or person holding an office of trust or profit under the united 
states, shall be appointed an elector. 

[* The electors shall meet in their respective states, and vote by ballot for 
two persons, of whom one at least shall not be an inhabitant of the same state 
with themselves. And they shall make a list of all the persons voted for, and 
the number of votes for each; which list they shall sign and certify, and trans¬ 
mit sealed to the seat of the government of the united states, directed to the 
president of the senate. The president of the senate shall, in the presence of 
the senate and house of representatives, open all the certificates, and the votes 
shall then be counted. The person having the greatest number of votes shall 
be the president, if such number be a majority of the whole number of electors 
appointed; and if there be more than one who have such majority, and have 





504 THE CONSTITUTION OF THE UNITED STATES. 


an equal number of votes, then the house of representatives shall immediately 
choose by ballot one of them for president ; and if no person have a majority, 
then from the five highest on the list the said house shall in like manner choose 
the president.* But in choosing the president the votes shall be taken by 
states, the representation from each state having one vote; a quorum for this 
purpose shall consist of a member or members from two-thirds of the states, 
and a majority of all the states shall be necessary to a choice. In every case, 
after the choice of the president, the person having the greatest number of 
votes of the electors shall be the vice-president. But if there should remain 
two or more who have equal votes, the senate sliall choose from them by ballot 
the vice-president.] 

[This clause was changed in 1804 for the twelfth amendment; and the said twelfth amendment 
is, verbatim, the provision of the confederate constitution on the subject. — Article II., section 1, 
clauses 3, 4 and 5.] 

3. The congress may determine the time of choosing the electors, and on 
the day on which they shall give their votes: which day shall be the same 
throughout the united states. 

4. No person, except a natural-born citizen* or a citizen of the united states 
at the time of the adoption of this constitution, shall be eligible to the office 
of president; neither shall any person be eligible to that office who shall not 
have attained to the age of thirty-five years, and been fourteen years a resident 
within the united states. 

[of the confederate states, or a citizen thereof at the time of the adoption of this constitution, or a 
citizen thereof born in the united states prior to the 20th of December, 1860, shall be eligible to the 
office of president; neither shall any person be eligible to that office, who shall not have attained 
the age of thirty-live years, and been fourteen years a resident within the limits of the confederate 
states as they may exist at the time of his election.] 

5. In case of the removal of the president from office, or of his death, resig¬ 
nation, or inability to discharge the powers and duties of the said office, the 
same shall devolve on the vice-president, and the congress may by law provide 
for the case of removal, death, resignation, or inability, both of the president 
and vice-president, declaring what officer shall then act as president, and such 
officer shall act accordingly, until the disability be removed, or a president 
shall be elected. 

6. The president shall at stated times receive for his services a compensation 
which shall neither be increased nor diminished during the period for which 
he shall have been elected, and he shall not receive within that period any 
other emolument from the united states, or any of them. 

7. Before lie enter on the execution of his office, he shall take the following 
oath or affirmation: — 

“ I do solemnly swear (or affirm) that I will faithfully execute the office of 
president of the united states, and will, to the best of my ability, preserve* 
protect, and defend the constitution of the united states.” 

SECTION II. 

1. The president shall be commander-in-chief of the army and navy of the 
united states, and of the militia of the several states, when called into the 
actual service of the united states; he may require the opinion, in writing, of 
the principal officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall have power to 
grant reprieves and pardons for offences against the united states, except in 
cases of impeachment. 

2. He shall have power, by and with the advice and consent of the senate, 
to make treaties, provided two-thirds of the senators present concur; and he 




APPENDIX B. 


505 


shall nominate, and by and with the advice and consent of the senate, shall 
appoint ambassadors, other public ministers and consuls, judges of the supreme 
court, and all other officers of the united states, whose appointments are not 
herein otherwise provided for, and which shall be established by law; but the 
congress may by law vest the appointment of such inferior officers, as they 
think proper, in the president alone, in the courts of law, or in the heads of 
departments. 

3. The president shall have power to fill up all vacancies that may happen 
during the recess of the senate, by granting commissions which shall expire at 
the end of their next session.* 

[but no person rejected by the senate shall be re-appointed to the same office during the ensuing 
recess.] 

[In the confederate instrument the third clause of section II. is as follows: — 

3. The principal officer in each of the executive departments, and all persons connected with the 
diplomatic service, may be removed from office at the pleasure of the president. All other civil 
officers of the executive department may be removed at any time by the president, or other appoint- 
ing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, miscon¬ 
duct, or neglect of duty; and when so removed, the removal shall be reported to the senate, together 
with the reason therefor.] 


SECTION III. 

He shall from time to time give to the congress information of the state 
of the union, and recommend to their consideration such measures as he shall 
judge necessary and expedient: he may, on extraordinary occasions, convene 
both houses, or either of them, and in case of disagreement between them, 
with respect to the time of adjournment, he may adjourn them to such time as 
he shall think proper; he shall receive ambassadors and other public ministers; 
he shall take care that the laws be faithfully executed, and shall commission 
all the officers of the united states. 

SECTION IV. 

The president, vice-president, and all civil officers of the united states, shall 
be removed from office on impeachment for, and conviction of, treason, bribery, 
or other high crimes and misdemeanors. 


ARTICLE III. 

SECTION I. 

The judicial power of the united states shall be vested in one supreme court, 
and in such inferior courts as the Congress may from time to time ordain and 
establish. The judges, both of the supreme and inferior courts, shall hold 
their offices during good behavior, and shall, at stated times, receive for their 
services a compensation, which shall not be diminished during their continu¬ 
ance in office. 

SECTION II. 

1. The judicial power shall extend to all cases, in law and equity,* arising 
under this constitution, t.he laws of the united states, and treaties made, or 
which shall be made, under their authority; to all cases affecting ambassadors, 
other public ministers, and consuls; to all cases of admiralty and maritime 
jurisdiction; to controversies to which the united states shall be a party; to 
controversies between two or more states; between a state and citizens of 
another state;f between citizens of different states; between citizens of the 


506 THE CONSTITUTION OF THE UNITED STATES. 


same state claiming lands under grants of different states, and between a state, 
or the citizens thereof, and foreign states, citizens or subjects. ^ 

* [The words “ in law and equity ’ ’ left out of the confederate instrument.] 

t [“ Where the state is plaintiff” are words here added in the confederate pact.] 

j [“ But no state shall be sued by any citizen or subject of any foreign state ” is a sentence added 
to the confederate clause.] 

2. In all cases affecting ambassadors, other public ministers, and consuls, and 
those in which a state shall be party, the supreme court shall have original 
jurisdiction. In all other cases before mentioned, the supreme court shall have 
appellate jurisdiction, both as to law and fact, with such exceptions, and under 
such regulations as the congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall be by jury, 
and such trial shall be held in such state where the said crime shall have been 
committed; but when not committed within any state, the trial shall be at 
such place or places as the congress may by law have directed. 

SECTION III. 

1. Treason against the united states shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid and comfort. No per¬ 
son shall be convicted of treason unless on the testimony of two witnesses to 
the same overt act, or on confession in open court. 

2. The congress shall have power to declare the punishment of treason, but 
no attainder of treason shall work corruption of blood or forfeiture, except 
during the life of the person attainted. 


ARTICLE IV. 

SECTION I. 

Full faith and credit shall be given in each state to the public acts, records, 
and judicial proceedings of every other state. And the congress may by gen¬ 
eral laws prescribe the manner in which such acts, records, and proceedings 
shall be proved, and the effect thereof. 

SECTION II. 

1. The citizens of each state shall be entitled to all privileges and immunities 
of citizens in the several states.* 

[and shall have the right of transit and sojourn in any state of this confederacy with their slaves 
and other property, and the right of property in such slaves shall not be thereby impaired.] 

2. A person charged in any state with treason, felony, or other crime, who 
shall flee from justice, and be found in another state, shall, on demand of the 
executive authority of the state from which he fled, be delivered up to be 
removed to the state having jurisdiction of the crime. 

3. No person held to service or labor in one state, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim of 
the party to whom such service or labor may be due.* 

[In the confederate constitution, the following is substituted: — 

3. No slave or other person held to service or labor in any state or territory of the confederate 
states, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim 
of the party to whom such slave belongs, or to whom such service or labor may be due.] 



APPENDIX B. 


507 


SECTION III. 

1. New states may be admitted by the congress into this union;* but no 
new state shall be formed or erected within the jurisdiction of any other state; 
nor any state be formed by the junction of two or more states, or parts of 
states, without the consent of the legislatures of the states concerned, as well 
as of the congress. 

[by a vote of two-thirds of the whole house of representatives and two-thirds of the senate, the 
senate voting by states.] 

2. The congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the 
united states; and nothing in this constitution shall be so construed as to 
prejudice any claims of the united states, or of any particular state.* 

[The confederate states may acquire new territory, and congress shall have power to legislate and 
provide governments for the inhabitants of all territory belonging to the confederate states lying 
without the limits of the several states, and may permit them, at such time and in such manner as it 
may by law provide, to form states to be admitted into the confederacy. In all such territory the 
institution of negro slavery, as it now exists in the confederate states, shall be recognized and pro¬ 
tected by congress and the territorial governments, and the inhabitants of the several confederate 
states and territories shall have the right to take to such territory any slaves lawfully held by them 
in any of the states or territories of the confederate states.] 


SECTION IV. 

The united states shall guarantee to every state in this union a republican 
form of government, and shall protect each of them against invasion; and on 
application of the legislature, or of the executive (when the legislature cannot 
be convened), against domestic violence. 

ARTICLE V. 

The congress, whenever two-thirds of both houses shall deem it necessary, 
shall propose amendments to this constitution, or, on the application of the 
legislatures of two-thirds of the several states, shall call a convention for pro¬ 
posing the amendments, which in either case shall be valid to all intents and 
purposes, as part of this constitution when ratified by the legislatures of three- 
fourths of the several states, or by conventions in three-fourths thereof, as the 
one or the other mode of ratification may be proposed by the congress, provided 
that no amendment which may be made prior to the year one thousand eight 
hundred and eight shall in any manner affect the first and fourth clauses in 
the ninth section of the first article; and that no state, without its consent, 
shall be deprived of its equal suffrage in the senate.* 

[Upon the demand of any three states, legally assembled in their several conventions, the congress 
shall summon a convention of all the states to take into consideration such amendments to the con¬ 
stitution as the said states shall concur in suggesting at the time when the said demand is made; and 
should any of the proposed amendments to the constitution be agreed on by the said convention — 
voting by states —and the same be ratified by the legislatures of two-thirds of the several states, or 
by conventions in two-thirds thereof, as the one or the other mode of ratification may be proposed 
by the general convention, they shall henceforward form a part of this constitution. But no state 
shall, without its consent, be deprived of its equal representation in the senate.] 


ARTICLE VI. 

1. All debts contracted and engagements entered into, before the adoption 
of this constitution, shall be as valid against the united states under this con¬ 
stitution, as under the confederation.* 

[“under the provisional government ” are the confederate words concluding above clause, which 
is the second in the confederate instrument — the first being as follows : — 


508 THE CONSTITUTION OF THE UNITED STATES. 


1. The government established by this constitution is the successor of the provisional government 
of the confederate states of America, and all the laws passed by the latter shall continue in force, 
until the same shall be repealed or modified ; and all the officers appointed by the same shall remain 
in office until their successors are appointed and qualified, or the offices abolished.] 

2. This constitution and tiie laws of the united states which shall be made in 
pursuance thereof; and all treaties made, or which shall be made, under the 
authority of the united states, shall be the supreme law of the land; and the 
judges in every state shall be bound thereby, anything in the constitution or 
laws of any state to the contrary notwithstanding. 

3. The senators and representatives before mentioned, and the members of 
the several state legislatures, and all executive and judicial officers, both of 
the united states and the several states, shall be bound by oath or affirmation 
to support this constitution; but no religious test shall ever be required as a 
qualification to any office or public trust under the united states. 


ARTICLE VII. 

% 

The ratification of the conventions of nine states, shall be sufficient for the 
establishment of this constitution between the states so ratifying the same.* 

[1. The ratification of the conventions of five states shall be sufficient for the establishment of this 
constitution between the states so ratifying the same. 

2. When five states shall have ratified this constitution in the manner before specified, the con¬ 
gress under the provisional constitution shall prescribe the time for holding the election of presi¬ 
dent and vice-president, and for the meeting of the electoral college, and for counting the votes and 
inaugurating the president. They shall also prescribe the time for holding the first election of mem¬ 
bers of congress under this constitution, and the time for assembling the same. Until the assembling 
of such congress, the congress under the provisional constitution shall continue to exercise the legis¬ 
lative powers granted them, not extending beyond the time limited by the constitution of the pro¬ 
visional government.] 


1. DELAWARE STATE. 

We, the deputies of the people of the Delaware 
state, in convention met ... by these presents 
do, in virtue of the power to us given, for and in 
behalf of ourselves and our constituents, fully, 
freely, and entirely approve of, assent to, ratify 
and confirm the said constitution. Done at Dover, 
December 7, 1787. 

2. COMMONWEALTH OF PENNSYLVANIA. 

We, the delegates of the people of the common¬ 
wealth of Pennsylvania, in general convention 
assembled, do in the name and by the authority of 
the said people, assent to, and ratify the fore¬ 
going constitution of the united states of America. 
Done in convention at Philadelphia, December 12, 
1787. 

3. STATE OF NEW JERSEY. 

In convention of the state of New Jersey, we 
the delegates of the state, ... do hereby, for, and 
on the behalf of the people of the said state of New 
Jersey, agree to, ratify, and confirm the pro¬ 
posed' constitution. Done December 18, 1787. 

4. STATE OF GEORGIA. 

We the delegates of the people of the state of 
Georgia, in convention met, ... do assent to, 
ratify and adopt the said constitution. Done 
January 2, 1788. 

5. STATE OF CONNECTICUT. 

In the name of the people of the state of Con¬ 
necticut, we, the delegates of the people of the 
said state, in general convention assembled, have 
assented to and ratified,, and by these presents do 


assent to and ratify the said constitution. Done 
January 9, 1788. 

6. COMMONWEALTH OF MASSACHUSETTS. 

The convention ... do in the name and in be¬ 
half of the people of the commonwealth of Massa¬ 
chusetts, assent to and ratify the said constitu¬ 
tion for the united states of America. Done Feb. 
5, 1788. 

7. MARYLAND. 

We the delegates of the people of the state of 
Maryland do . . . assent to and ratify the said 
constitution. Done April 28, 1788. 


8. STATE OF SOUTH CAROLINA. 

The convention ... do, in the name and behalf 
of the people of this state hereby assent to and 
ratify the said constitution. Done May 23, 

1788. 

9. STATE OF NEW HAMPSHIRE. 

The convention ... do, in the name and be¬ 
half of the people of the state of New Hampshire, 
assent and ratify the said constitution. Done 
June 21, 1788. 

10. VIRGINIA. 

We the delegates of the people of Virginia,. . . 
now met in convention, ... do by these presents 
assent to and ratify the constitution recom¬ 
mended, hereby announcing that it is binding 
upon the said people. Done June 28, 1788. 




APPENDIX B. 


509 


the state of North Carolina, do adopt and ratify 
the said constitution. Done November 21, 1789. 

13. RHODE ISLAND. 

We the delegates of the people of the state, . .. 
met in convention, ... do, by these presents, as¬ 
sent to and ratify the said constitution. 


In convention, resolved that the convention, in 
behalf of the freemen, citizens and inhabitants of 


ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE 

CONSTITUTION OF THE UNITED STATES OF AMERICA, 

PROPOSED BY CONGRESS AND RATIFIED BY THE LEGISLATURES OF THE 
SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE 
ORIGINAL CONSTITUTION. 

Amendments of 1791. 

ARTICLE I. 

Congress shall make no law respecting an establishment of religion, or pro¬ 
hibiting the free exercise thereof; or abridging the freedom of speech, or of the 
press; or the right of the people peaceably to assemble, and to petition the 
government for a redress of grievances. 

ARTICLE II. 

A well-regulated militia being necessary to the security of a free state, the 
right of the people to keep and bear arms shall not be infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house without the 
consent of the owner, nor in time of war, but in a manner to be prescribed by 
law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue, but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be searched, and the 
persons or things to be seized. 


11. STATE OF NEW YORK. 

We the delegates of the people of the state of 
New York, duly elected and met in convention, 
. . . do, by these presents, assent to and ratify 
the said constitution. Done at Poughkeepsie, July 
26, 1788. 

12. STATE OF NORTH CAROLINA. 


ARTICLE V. 

No person shall be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, except in cases arising 
in the land or naval forces, or in the militia, when in actual service in time of 
w r ar or public danger; nor shall any person be subject for the same offence to 
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal 
case to be a witness against himself, nor be deprived of life, liberty, or property 
without due process of law: nor shall private property be taken for public use 
without just compensation. 


510 THE CONSTITUTION OF THE UNITED STATES. 


ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the state and district wherein the crime 
shall have been committed, which district shall have been previously ascer¬ 
tained by law, and to be informed of the nature and cause of the accusation; 
to be confronted with the witnesses against him; to have compulsory process for 
obtaining witnesses in his favor, and to have the assistance of counsel for his 
defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury 
shall be otherwise re-examined in any court of the united states, than accord¬ 
ing to the rules of the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the constitution, of certain rights, shall not be construed 
to deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the united states by the constitution, nor pro¬ 
hibited by it to the states, are reserved to the states respectively, or to the 
people. 

Amendment of 1798. 

ARTICLE XI. 

The judicial power of the United States shall not be construed to extend to 
any suit in law or equity, commenced or prosecuted against one of the united 
states by citizens of another state, or by citizens or subjects of any foreign 
state. 

Amendment of 1804. 

ARTICLE XII. 

1. The electors shall meet in their respective states, and vote by ballot for 
president and vice-president, one of whom, at least, shall not be an inhabitant 
of the same state with themselves; they shall name in their ballots the person 
voted for as president, and in distinct ballots the person voted for as vice- 
president, and they shall make distinct lists of all persons voted for as presi¬ 
dent, and of all persons voted for as vice-president, and of the number of votes 
for each, which lists they shall sign and certify, and transmit sealed to the seat 
of the government of the united states, directed to the president of the senate. 
The president of the senate shall, in presence of the senate and house of repre¬ 
sentatives, open all the certificates, and the votes shall then be counted. The 
person having the greatest number of votes for president shall be the presi- . 




APPENDIX B. 


511 


dent, if such number be a majority of the whole number of electors appointed; 
and if no person have such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for as president, the 
house of representatives shall choose immediately, by ballot, the president. 
But in choosing the president, the votes shall be taken by states, the repre¬ 
sentation from each state having one vote; a quorum for this purpose shall 
consist of a member or members from two-thirds of the states, and a majority 
of all the states shall be necessary to a choice. And if the house of repre¬ 
sentatives shall not choose a president whenever the right of choice shall de¬ 
volve upon them, before the fourth day of March next following, then the 
vice-president shall act as president, as in the case of the death or other con¬ 
stitutional disability of the president. 

2 . The person having the greatest number of votes as vice-president shall 
be the vice-president, if such number be a majority of the whole number .of 
electors appointed; and if no person have a majority, then from the two high¬ 
est numbers on the list the senate shall choose the vice-president; a quorum 
for the purpose shall consist of two-thirds of the whole number of senators, and 
a majority of the whole number shall be necessary to a choice. 

3. But no person constitutionally ineligible to the office of president shall 
be eligible to that of vice-president of the united states. 

Amendment of 1865. 

ARTICLE XIII. 

Section 1 . Neither slavery nor involuntary servitude, except as a punish¬ 
ment for crime, whereof the party shall have been duly convicted, shall exist 
within the united states, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appropriate 
legislation. 

Amendment of 1868. 

ARTICLE XIV. 

Section 1. All persons born or naturalized in the united states, and subject 
to the jurisdiction thereof, are citizens of the united states, and of the state 
wherein they reside. No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the united states ; nor shall 
any state deprive any person of life, liberty or property without due process 
of law, nor deny to any person within its jurisdiction the equal protection of its 
laws. 

Section 2. Representatives shall be apportioned among the several states 
according to their respective numbers, counting the whole number of persons 
in each state, excluding Indians not taxed. But when the right to vote at any 
election, for the choice of electors for president and vice-president of the united 
states, representatives in congress, the executive and judicial officers of a state, 
or the members of the legislature thereof, is denied to any of the male inhabi¬ 
tants of such state, being twenty-one years of age and citizens of the united 
states, or in any way abridged except for participation in rebellion or other 
crime, the basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall be to the whole number of male 
citizens, twenty-one years of age, in such state. 

Section 3. No person shall be a senator or representative in congress, or 
elector of president or vice-president, or hold any office, civil or military, under 
the united states, or any state, who, having previously taken an oath as a 


512 THE CONSTITUTION OF THE UNITED STATES. 


member of congress, or as an officer of the united states, or as a member of any 
state legislature, or as an executive or judicial officer of any state, to support the 
constitution of the united states, shall have engaged in insurrection or rebel¬ 
lion against the same, or given aid or comfort to the enemies thereof. But 
congress may by a vote of two-thirds of each house, remove such disability. 

Section 4. The validity of the public debt of the united states, authorized 
by law, including debts incurred for payment of pensions and bounties for ser¬ 
vices in suppressing insurrection and rebellion, shall not be questioned. But 
neither the united states nor any state, shall assume or pay any debt or obliga¬ 
tion incurred in aid of insurrection or rebellion against the united states, or any 
claim for the loss or emancipation, of any slaves; but all such debts, obligations 
and claims shall be held illegal and void. 

Section 5. The congress shall have power to enforce by appropriate legisla¬ 
tion, the provisions of this article. 

Amendment of 1870. 

ARTICLE XV. 

Section 1. The right of citizens of the united states to vote shall not be 
denied or abridged by the united states, or by any state, on account of race, 
color, or previous condition of servitude. 

Section 2. The congress shall have power to enforce this article by appro¬ 
priate legislation. 


THE ATTESTATION OF THE INSTRUMENT PROPOSED BY THE 
FRAMERS FOR A FEDERAL CONSTITUTION. 

To attest, authenticate and recommend the new plan of a federal constitution 
to the people of the several states, the deputies to “ the convention of states ” 
of 1787, affixed the following words with their names — signed by states; but 
as Daniel Webster said, the instrument was “inoperative paper” “till ratified 
[and thereby established] by nine states.” 

“Done in convention by the unanimous consent of the states present the 
17th day of September, A. D. 1787, and of the independence of the U. S. A., 
the 12th. In witness whereof we have hereunto subscribed our names. 

GEORGE WASHINGTON, President and deputy from Virginia . 

New Hampshire. 

John Langdon. Nicholas Gilman. 

Massachusetts. 

Nathaniel Gorham. Rufus King. 

Connecticut. 

Wm. Sami. Johnson. Roger Sherman. 

New York. 

Alexander Hamilton. 


APPENDIX B. 


513 


New Jersey. 

j William Livingston. David Brearly. * 

"William Patterson. Jona. Dayton. 

Pennsylvania. 

Robert Morris. James Wilson. George Clymer. Gouv. Morris. 

B. Franklin. Tho. Fitzsimmons. Thomas Mifflin. Jared Ingersoll. 

Delaware. 

Geo. Read. John Dickinson. Gunning Bedford, jr. 

Jaco. Broom. Richard Bassett. 

Maryland. 

James McHenry. Daniel Carroll. Dan. of St. Thos. Jenifer. 
Virginia. 

John Blair. James Madison, jr. 

North Carolina. 

Wm. Blount. Richard Dobbs Spaight. Hugh Williamson. 

South Carolina. 

J. Rutledge. Charles Cotesworth Pinckney. 

Charles Pinckney. Pierce Butler. 

Georgia. 

William Few. Abr. Baldwin. 

Attest: William Jackson, Secretary. 


THE ACTS OF THE CONVENTION AND OF CONGRESS. 

The following documents should be printed in connection with the constitu¬ 
tion, to show our people how completely the federal idea was held in view and 
acted on by the sovereigns in making their compact, supreme law, and consti¬ 
tution of government. 

1. THE RESOLUTIONS OF THE CONVENTION OF STATES, 

as to “the states beginning to act under the new compact”—to use the ex¬ 
pression of Washington. 

In convention, Monday, September 17, 1787. Present:—The states of 
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
South Carolina, and Georgia. 


33 


514 


THE CONSTITUTION OF THE UNITED STATES. 


“ Resolved, That the preceding constitution be laid before the united states in 
congress assembled, and that it it is the opinion of this convention that it should 
afterwards be submitted to a convention of delegates, chosen in each 
state by the people thereof, under the recommendation of its legislature, 
for their assent and ratification, and that each convention, assenting to 
and ratifying the same, should give notice thereof to the united states in con¬ 
gress assembled. 

“ Resolved, That it is the opinion of this convention that as soon as the 
conventions of nine states shall have ratified this constitution, the 
united states in congress assembled, should fix a day on which electors should 
be appointed by the states which shall have ratified the same, and a 
day on which the electors should assemble to vote for the president, and the 
time and place for commencing proceedings under this constitution. That after 
such publication, the electors should be appointed, and the senators 
and representatives ; that the electors should meet on the day fixed for the 
election of the president, and should transmit their votes certified, signed, sealed 
and directed, as the constitution requires, to the secretary of the united states 
in congress assembled; that the senators and representatives should convene at 
the time and place assigned; that the senators should appoint a president of 
the senate, for the sole purpose of receiving, opening and counting the votes for 
president; and that, after he shall be chosen, the congress, together with 
the president, should, without delay, proceed to execute this con- 
stitution. 

“ By the unanimous order of the convention.” 


2. THE LETTER OF WASHINGTON, 

the president of the convention of states, written by its “ unanimous order,” 
sufficiently quoted on p. 534 infra ; and to be found complete in “The Consti¬ 
tution,” by William Hickey, p. 188. It is cited to prove that the convention 
considered the states to be parties to approve or reject; that the government 
aimed at was to be “ the federal government of these states,” and that 
the constitution was considered the “ delegating ” of au “ extensive trust.” 


3. THE ACTION OF THE STATES IN CONGRESS. 

“ The united states in congress assembled, Saturday, September 13, 
1788. Congress assembled. Present: — New Hampshire, Massachusetts, 
Connecticut, New York, New Jersey, Pennsylvania, Virginia, North Carolina, 
South Carolina, and Georgia; and from Rhode Island Mr. Arnold, and from 
Delaware Mr. Kearny.” 

The following preamble and resolution were unanimously adopted: — 

“ Whereas, the convention assembled in Philadelphia, pursuant to the reso¬ 
lution of Congress of the 21st of February, 1787, did, on the 17th of Septem¬ 
ber in the same year, report to the united states in congress assembled, a 
constitution for the people of the united states; whereupon congress, on the 
28th of the same September, did resolve, unanimously, ‘ That the said report, 
with the resolutions and letter accompanying the same, be transmitted to the 
several legislatures, in order to be submitted to a convention of delegates, 
chosen in each state by the people thereof, in conformity to the resolves of the 
convention made and provided in that case ’: And whereas the constitution 
so reported by the convention, and by congress transmitted to the several 
legislatures, has been ratified in the manner therein declared to be 


APPENDIX B. 


515 


sufficient for the establishment of the same, 1 and such ratifications, 

duly authenticated, have been received by congress, and are filed in the 
office of the secretary; therefore — 

“ Resolved, That the first Wednesday in June next be the day for appointing 
electors in the several states which, before the said day, shall have 
ratified the said constitution ; that the first Wednesday in February next 
be the day for the electors to assemble in their respective states, and vote for 
a president; and that the first Wednesday in March next be the time, and the 
present seat of congress (New York) the place, for commencing the proceedings 
under the said constitution.” 

1 Art. VII. “The ratifications of the conventions of nine states shall be sufficient 
for the establishment of this constitution between the states so [i.e. by conventions] 
ratifying the same.” 


APPENDIX C. 


FEDERATION ALWAYS INTENDED. 

The object of the proofs in this part of the Appendix, is to show that from 
the beginning to the end of the great movement that gave us our present 
constitution, the states and the fathers always kept in mind, and acted by, the 
idea and theory of federation. The simplest man with these evidences at hand, 
can crush the consolidationists. 

THE ANNAPOLIS CONVENTION. 

The first evidence to present is the report of that body, which, as only five 
states were present, forebore to deliberate on the purposes of their convention, 
but recommended that a convention of commissioners of states should be held 
at Philadelphia, in May, 1787, “to devise such further provisions as 
shall . . . render the constitution of the federal government ade¬ 
quate to the exigencies of the union.” [I. Ell. Deb. 116.] 

The proposition of the General Assembly of Virginia, that led to the Anna¬ 
polis convention, is in I. Elliott’s Debates, p. 115. 

THE CONGRESS OF STATES. 

This body on Eeb. 21, 1787, resolved unanimously, that it was expedient 
that the states hold a convention of their delegates, “ for the sole and 
express purpose of revising the articles of Confederation,” to “ render 
the federal constitution adequate to the exigencies of government, 
and the preservation of the union.” [Ibid. 120.] 

Copious extracts from the above report and resolution will be found in this 
Appendix C [No. 3]. 


No. 1. 

THE CREDENTIALS OE MEMBERS OF THE CONVENTION OF 
STATES OF 1787. 

STATE OF NEW HAMPSHIRE. 


A. D. 1787. 

An act for appointing Deputies from this State to the convention proposed to he 
held in the City of Philadelphia , in May, 1787, for the purpose of revising 
the federal constitution. 

Whereas, in the formation of the federal compact, which frames the bond 
of union of the American States, it was not possible in the infant state of our 






APPENDIX C. NO. 1. 


517 


republic, to devise a system which, in the course of time and experience, would 
not manifest imperfections that it would be necessary to reform; 

And whereas, the limited powers, which, by the articles of Confederation, 
are vested in the Congress of the United States have been found far inadequate 
to the enlarged purposes which they were intended to produce; and whereas 
Congress hath, by repeated and most urgent representations, endeavored to 
awaken this and other States to a sense, etc., etc. 

Be it therefore enacted , by the Senate and House of Representatives in General 
Court convened , that, John Langdon, John Pickering, Nicholas Gilman and 
Benjamin West, Esqrs., be, and hereby are, appointed commissioners: they or 
any two of them, are hereby authorized and empowered, as deputies from this 
State, to meet at Philadelphia, said convention, or any other place to which 
the convention may be adjourned, for the purposes aforesaid, there to confer 
with such deputies as are, or may be, appointed by the other States, for similar 
purposes, and with them to discuss and decide upon most effectual 
means to remedy the defects of our federal Union, and to procure and 
secure the enlarged purposes which it was intended to effect, and to report 
such an act to the United States in Congress, as when agreed to by them, and 
duly confirmed by the several States, will effectually provide for the same. 


COMMONWEALTH OF MASSACHUSETTS. 

By his Excellency James Bowdoin, Esq., Governor of the Commonwealth 
[l. s.] of Massachusetts. 

To the honorable Francis Dana, Elbridge Gerry, Nathaniel Gorham, 

Rufus King, and Caleb Strong, Esqrs., Greeting: 

Whereas, Congress did, on the 21st day of February, A. D. 1787, resolve, 
“ That, in the opinion of Congress, it is expedient that, on the second Monday 
in May next, a convention of delegates, who shall have been appointed by the 
several States, be held at Philadelphia, for the sole and express purpose 
of revising the articles of Confederation, and reporting to Congress and 
the several legislatures such alterations therein, as shall, when agreed to in 
Congress, and confirmed by the States, render the federal constitu¬ 
tion adequate to the exigencies of government and the preservation 
of the Union ; ” And, whereas, the Gen. Court have constituted and ap¬ 
pointed you their delegates, to attend and represent this commonwealth in the 
said proposed convention, and have, by a resolution of theirs of the 10th of 
March last, requested me to commission you for that purpose : 

Now, therefore, know ye That in pursuance of the resolutions aforesaid, I do 
by these presents, commission you, the said Francis Dana, Elbridge Gerry, 
Nathaniel Gorham, Rufus King, and Caleb Strong, Esqrs., or any three of 
you, to meet such delegates as may be appointed by other, or any of the 
other States in the union, to meet in convention at Philadelphia, at the 
time and for the purposes aforesaid. 

In testimony whereof, I have caused the public seal of the commonwealth 
aforesaid to be hereunto affixed. 

Given at the Council Chamber in Boston, the 9th day of April, A. D. 1787. 

James Bowdoin. 



518 


FEDERATION ALWAYS INTENDED. 


STATE OF CONNECTICUT. 

At a General Assembly of the State of Connecticut, in America, holden at 
[l. s.] Hartford, on the second Thursday of May, 1787. 

An act for appointing Delegates to meet in Convention of the States, to be 

held in Philadelphia, on the second Monday of May, instant. 

Whereas, the Congress of the United States, by their act of the 21st of 
February, 1787, have recommended that, on the second Monday of May inst., 
a Convention of delegates, who shall have been appointed by the several states, 
be held at Philadelphia, for the sole and express purpose of revising the 
Articles of Confederation, — 

Be it enacted by the Governor, council, and representatives, in General 
Court assembled, and by the authority of the same. That the Hon. William 
Samuel Johnson, Roger Sherman, and Oliver Ellsworth, Esqrs., be, and they 
are, hereby, appointed delegates to attend said Convention, ... To represent 
this state therein, and to confer with such delegates appointed by the several 
states, for the purpose mentioned in the said act of Congress, that may be 
present and duly empowered to sit in said convention, and to discuss upon 
such alterations and provisions, agreeably to the general principles 
of republican government, as they shall think proper to render the 
Federal Constitution adequate to the exigencies of government, and 
the preservation of the Union, and they further directed, pursuaut to the 
said act of Congress, to report such alterations and provisions as may be agreed 
to by a majority of the United States represented in convention, to the Con¬ 
gress of the United States, and to the General Assembly of this state. 

A true copy of record. * George Willys, 

Secretary . 


STATE OF NEW YORK. 

In Assembly March 6, 1878. 

Resolved, that the Hon. Robert Yates, John Lansing, Jun., and Alexander 
Hamilton, Esqrs., be, and they are, hereby declared duly nominated and ap¬ 
pointed delegates, on the part of this state, to meet such delegates as may be 
appointed on the part of the other states, respectively, on the second Monday 
in May next, at Philadelphia, for the sole and express purpose of revis¬ 
ing the Articles of Confederation, and reporting to Congress, apd to the 
several legislatures, such alterations and provisions therein as shall, 
when agreed to in Congress, and confirmed by the several states, render 
the Federal Constitution adequate to the exigencies of government 
and the preservation of the Union. 

True extracts from the Journals of the Assembly. 

John M'Kesson, Clerk . 


STATE OF - NEW JERSEY. 

His excellency William Livingston commissions David Brearly, William C. 
Houston, William Patterson, Jonathan Dayton, and others “to meet such com- 




APPENDIX C. NO. 1. 


519 


missioners as have been or may be appointed by the other states in the Union ” 
at Philadelphia, 2d May, 1787, to — among other things — “devise such 
other provisions as shall appear to be necessary to render the constitu¬ 
tion of the federal government adequate to the exigencies thereof.” 

Each commission concludes thus : “ In testimony whereof the great seal of the 
state is hereunto affixed. Witness William Livingston, Esq., Governor . . . 
and commander in chief in and over the State and territories thereunto belong¬ 
ing ... at Trenton the 23d of November A. D. 1786, and of our sovereignty 
and independence the eleventh. 

William Livingston. 


COMMONWEALTH OE PENNSYLVANIA. 

An Act appointing deputies to the Convention to be held in the city of Phila¬ 
delphia, for the purpose of revising the federal constitution. 

Section 1 . Whereas, the General Assembly of this commonwealth, taking 
into their hands serious consideration of the representations heretofore made to 
the legislatures of the several states in the union, by the United States in Con¬ 
gress assembled, and also weighing the difficulties under which the confederated 
states now labor, are fully convinced of the necessity of revising the Federal 
Constitution, for the purpose of making such alterations and amendments 
as the exigencies of our public affairs require: And whereas the legislature of 
the State of Virginia have already passed an act of that commonwealth, em¬ 
powering certain commissioners to meet at the city of Philadelphia, in May 
next, a convention of commissioners or deputies from the different states ; and 
the legislature of this state are fully sensible of the important advantages which 
may be derived to the United States, and every of them, from co-operating with 
the commonwealth of Virginia and the other states of the confederation, in the 
said design. 

Section 2. Be it enacted, and it is hereby enacted, by the representatives 
of the freemen of the commonwealth of Pennsylvania, in General Assembly 
met, and by the authority of the same, That Thomas Mifflin, Robert Morris, 
George Clymer, Jared Ingersoll, Thomas Fitzsimmons, James Wilson, and Gou- 
verneur Morris, Esqs., are hereby appointed deputies from this state, to meet in 
the convention of the deputies of the respective states of North America, to be 
held at the city of Philadelphia, on the 2d day of the month of May next; 
and the said Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, 
Thomas Fitzsimmons, James Wilson, and Gouverneur Morris, Esqs., or any four 
of them, are hereby constituted and appointed deputies from this state, with 
powers to meet such deputies as may be appointed and authorized by the other 
states, to assemble in the said convention, at the city aforesaid, and join with 
them in devising, deliberating on, and discussing, all such alterations and 
further provisions as may be necessary to render the federal constitu¬ 
tion fully adequate to the exigencies of the union, and in reporting 
such act or acts, for that purpose, to the united states in congress assembled 
as, when agreed to by them, and duly confirmed by the several states, will 
effectually provide for the same. 

Enacted into a law at Philadelphia, on Saturday, Dec. 30, in the year of our 
Lord 1786. 

Pete Zachary Lloyd, 

Clerk of the General Assembly . 

Benjamin Franklin was afterwards added to the deputation. 



520 


FEDERATION ALWAYS INTENDED. 


DELAWARE STATE. 

In the eleventh year of the independence of the state of Delaware. 

An act appointing deputies from this state to the Convention proposed to be 
held in the City of Philadelphia, for the purpose of revising the 
Federal Constitution. 

Whereas the General Assembly of this state are fully convinced of the neces¬ 
sity of revising the Federal Constitution, and adding thereto such 
provisions as may render the same more adequate to the exigen¬ 
cies of the Union ; And whereas the legislature of Virginia have already 
passed an act of that commonwealth, appointing and authorizing certain com¬ 
missioners to meet, at the city of Philadelphia, in May next, a convention of 
commissioners or deputies from the different states; and this state being will¬ 
ing and desirous of co-operating with the commonwealth of Virginia, and the 
other states of the confederation, in so useful a decision: 

Be it therefore enacted by the General Assembly of Delaware, that George 
Reed, Gunning Bedford, Jr., John Dickinson, Richard Bassett, and Jacob Broom, 
Esqrs., are hereby appointed deputies from this state to meet in the conven¬ 
tion deputies of other states . . . and to join with them in devising, deliber¬ 
ating on, and discussing, such alterations and further provisions as may 
be necessary to render the Federal Constitution adequate to the 
exigencies of the Union ; and in reporting such act or acts, for that pur¬ 
pose, to the United States in Congress assembled, as when agreed to by them, 
and duly confirmed by the several states, may effectually provide for the 
same. ... 

In testimony whereof, I have hereunto subscribed my name, and caused the 
great seal of the said state to be affixed to these presents, at New Castle, the 
2d day of April, in the year of our Lord 1787, and in the 11th year of 
the Independence of the United States of America. 

Attest, James Booth, 

Secretary. Thomas Collins, 

President * 


STATE OF MARYLAND. 

An act for the appointment of, and conferring powers on, deputies from this 
state to the Federal Convention. 

Be it enacted by the General Assembly of Maryland, That the Hon. James 
M’Henry, Daniel of St. Thomas Jenifer, Daniel Carroll, John Francis Mercer, 
and Luther Martin, Esqrs., be appointed and authorized, on behalf of this state, 
to meet such deputies as may be appointed and authorized, by any other of the 
united states, to assemble in convention at Philadelphia, for the purpose of 
revising the federal system, and to join with them in considering such altera¬ 
tions and further provisions as may be necessary to render the fed¬ 
eral constitution adequate to the exigencies of the Union ; and in 
reporting such purpose to the united states in Congress assembled as when 
agreed to by them and duly confirmed by the several states, will effectually pro¬ 
vide for the same, etc. 



APPENDIX C. NO. 1. 


521 




COMMONWEALTH OF VIRGINIA. 

General Assembly held in the city of Richmond, 16th Oct., A. D . 1786. 

An act for appointing deputies from the commonwealth to a convention pro¬ 
posed to oe held in the city of Philadelphia, in May next, for the purpose 
of revising the federal constitution. 

Whereas, etc., etc. . . . 

Be it therefore enacted by the General Assembly of the commonwealth of 
Virginia, That seven commissioners be appointed, by joint ballot of both houses 
of Assembly, who, or any three of them, are hereby authorized, as deputies 
from this commonwealth, to meet such deputies as may be appointed and au¬ 
thorized by other states, to assemble in Convention at Philadelphia, as above 
recommended, and to join them in devising and discussing all such alterations 
and further provisions as may be necessary to render the Federal 
Constitution adequate to the exigencies of the Union ; and in report¬ 
ing such an act, for that purpose, to the United States in Congress, as, when 
agreed to by them, and duly confirmed by the several states, will effectually 
provide for the same. 

Under the above act George Washington, Patrick Henry, Edmund Ran¬ 
dolph, John Blair, James Madison, George Mason, and George Wythe, were 
elected as the deputies of Virginia. Patrick Henry declining, James McClurg 
was, under the law, appointed by Gov. Randolph to fill the place. 


THE STATE OF NORTH CAROLINA. 

To the Hon. Alexander Martin, Esq., Greeting: 

Whereas our General Assembly, in their late session, holden at Fayetteville, 
by adjournment, in the month of January last, did, by joint ballot of the Senate 
and House of Commons, elect Richard Caswell, Alexander Martin, William 
Richardson Davie, Richard Dobbs Spaight, and Willie Jones, Esqrs., deputies 
to attend a Convention of Delegates from the several United States of America, 
proposed to be held at the city of Philadelphia, in May next, for the purpose 
of revising the Federal Constitution. 

We do, therefore, by these presents, nominate, commission, and appoint you, 
the said Alexander Martin, one of the deputies for and in behalf, to meet with 
our other deputies at Philadelphia, on the 1st of May next, and with them, or 
any two of them, to confer with such deputies as may have been, or -shall be, 
appointed by the other states, for the purpose aforesaid: To hold, exercise, 
and enjoy, the appointment aforesaid, with all powers, authorities, and emolu¬ 
ments, to the same belonging, or in any wise appertaining — you conforming 
in every instance, to the act of our said Assembly, under which you are 
appointed. 

Witness, Richard Caswell, Esq., our governor, captain-general, and com- 
mander-in-chief, under his hand and our seal, at Kinston, the 24th day of 
February, in the eleventh year of our independence, a. d. 1787. Rich. Cas¬ 
well, By his excellency’s command. —Winston Caswell, P. Secretary. 

The deputies elected and commissioned as above, were Richard Caswell. 
Alexander Martin, William R. Davie, Richard D. Spaight, Willie Jones, Wil¬ 
liam Blount and Hugh Williamson. 



522 


FEDERATION ALWAYS INTENDED. 


The act of assembly declares that the said deputies are “ to meet and confer 
with such deputies as may be appointed by the other states for similar pur¬ 
poses, and with them to discuss and decide upon the most effectual means 
to remove the defects of our federal union, and to procure the en¬ 
larged purposes which it was intended to effect, and that they report 
such an act to the General Assembly of this state as, when agreed to by them, 
will effectually provide for the same.” 


STATE OF SOUTH CAROLINA. 

By his excellency, Thomas Pinckney, Esq., governor and commander-in- 
chief in and over the state aforesaid. 

To the Hon. John Rutledge, Esq., Greeting: 

By virtue of the power and authority in me vested by the legislature of this 
state, in their act passed the 8th day of March last, I do hereby commission 
you, the said John Rutledge, as one of the deputies appointed from this state, 
to meet such deputies or commissioners as may be appointed and authorized by 
other of the United States, to assemble in Convention, at the city of Philadel¬ 
phia, in the month of May next, or as soon thereafter as may be, and to join 
with such deputies or commissioners (they being duly authorized and empow¬ 
ered) in devising and discussing all such alterations, clauses, articles 
and provisions as may be thought necessary to render the Federal Con¬ 
stitution entirely adequate to the actual situation and future good 
government of the confederated states ; and that you, together with the 
said deputies or commissioners, or a majority of them, who shall be present 
(provided the state be not represented by less than tw r o), do join in reporting 
such an act to the United States in Congress assembled, as, when approved 
and agreed to by them, and duly ratified and confirmed by the several states, 
will effectually provide for the exigencies of the Union. 

Given under my hand and the great seal of the state, in the city of Charles¬ 
ton, this 10th day of April, in the year of our Lord 1787, and of the sove¬ 
reignty and independence of the United States of America the eleventh. 

Thomas Pinckney. 

By his excellency’s command, — Peter Freneau, Secretary. 

Charles Pinckney, Charles Cotesworth Pinckney, and Pierce Butler were 
likewise appointed and commissioned in the same manner. 


STATE OF GEORGIA. 

An Ordinance for the appointment of Deputies from this state, for the Purpose 
of revising the Federal Constitution. 

Be it ordained by the representatives of the freemen of the state of Georgia, 
in General Assembly met, and by authority of the same, that William Few, 
Abraham Baldwin, William Pierce, George Walton, "William Houston, and 
Nathaniel Pendleton, Esqrs., be, and they are hereby, appointed commissioners, 
who, or any two or more of them, are hereby authorized, as deputies from this 
state, to meet such deputies as* may be appointed and authorized by other 
states, to assemble in Convention at Philadelphia, and to join with them in 
devising and discussing all such alterations and further provisions as 




APPENDIX C. NO. 2. 


523 


may be necessary to render the Federal Constitution adequate to 
the exigencies of the Union, and in reporting such an act for that purpose 
to the United States in Congress assembled, as when agreed to by them, and 
duly confirmed by the several states, will effectually provide for the same. 

The commissions issued to like deputies were copies of the following to 
William Few. 

The State of Georgia, by the grace of God, free, sovereign , and independent. 
To the Hon. Wm. Few, Esq..: — 

Whereas you, the said William Few, are, in and by an ordinance of the General 
Assembly of our said state, nominated and appointed a deputy to represent the 
same in a Convention of the United States, to be assembled at Philadelphia, 
for the purposes of devising and discussing all such alterations and further 
provisions as may be necessary to render the Federal Constitution 
adequate to the exigencies of the Union. — 

You are therefore hereby commissioned to proceed on the duties required of 
you in virtue of the said ordinance. 

Witness our trusty and well-beloved George Mathews, Esq., our captain- 
general, governor, and commander-in-chief, under his hand and our great seal, 
this 17th day of April, in the year of our Lord 1787, and our sovereignty 
and independence the eleventh. Geo. Mathews. 

By his honor’s command. — J. Milton, Secretary. 


No. 2. 

THE ACTS OB ORDINANCES OF RATIFICATION OF THE 
FEDERAL CONSTITUTION. 

On Friday, September 28th, 1787, the states in Congress having received 
the plan of the constitution with the resolutions and letter accompanying the 
same—all as reported by the convention — did resolve that they “be trans¬ 
mitted to the several legislatures, in order to be submitted to a convention of 
delegates, chosen in each state by the people thereof, in conformity to the 
resolves of the convention made and provided in that case.” [For this and the 
following acts, see 1. Ell. Deb. 319 et seq.~\ 

Whereupon each state by itself, in its own time, way, and place, and in its 
own convention, which was composed of its own subjects and delegates, and 
was authorized exclusively with its power; deliberated upon and finally rati¬ 
fied the said constitution in the following order,, and in the following words 
respectively — history giving no sign or hint of any other words, or will, than 
those of the following states, to vitalize or give legal force to, the present 
federal system. . 


1. DELAWARE STATE. 

We, the deputies of the people of the Delaware state, in Convention 
met, having taken in our serious consideration the Federal Constitu¬ 
tion proposed and agreed upon by the deputies ol the United States, in 
a General Convention held at the city of Philadelphia, on the seventeenth 
day of September, in the year of our Lord one thousand seven hundred and 
eighty-seven, have approved, assented to, ratified, and confirmed, and by 
these presents do, in virtue of the power and authority to us given, 




524 


■RATIFICATIONS. 


for and in behalf of ourselves and our constituents, fully, freely, and 
entirely approve of, assent to, ratify, and confirm, the said Con¬ 
stitution. 

Done in Convention, at Dover, this seventh day of December, in the 
year aforesaid, and in the year of the independence of the United States of 
America the twelfth. 


2. COMMONWEALTH OE PENNSYLVANIA. 

In the name of the People of Pennsylvania. 

Be it known unto all men, that we, the delegates of the people of the 
commonwealth of Pennsylvania, in General Convention assembled, have 
assented to and ratified, and by these presents do, in the name and by 
the authority of the same people, and for ourselves, assent to and 
ratify the foregoing Constitution of the United States of America. 

Done in Convention at Philadelphia, the twelfth day of December, in the 
year of our Lord one thousand seven hundred and eighty-seven, and of the 
independence of the United States of America the twelfth. 


3. STATE OE NEW JERSEY. 

In Convention of the State of New Jersey. 

Whereas, a Convention of delegates from the following states, viz., — New 
Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsyl¬ 
vania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and 
Georgia, — met at Philadelphia, for the purpose of deliberating on, and form- ’ 
ing a Constitution for the United States of America, — finished this session on 
the 17th day of September last, and reported to Congress the form which they 
had agreed upon, in the words following, viz: 

[See the Constitution.] . . . 

Now be it known, that we, the delegates of the state of New Jersey, 
chosen by the people thereof, for the purpose aforesaid, having maturely 
deliberated on and considered the aforesaid proposed Constitution, 
do hereby, for and on the behalf of the people of the said State 
of New Jersey, agree to, ratify, and confirm, the same, and every 
part thereof. 

Done in convention, by the unanimous consent of the members present, this 
18th day of December, in the year of our Lord 1787, and of the independence 
of the United States of America the twelfth. 


4. STATE OE CONNECTICUT. 

In the name of the People of the State of Connecticut. 

We, the delegates of the people of said state, in general Conven¬ 
tion assembled, pursuant to an act of the legislature in October last, have 
assented to, and ratified, and by these presents do assent to, ratify, 
and adopt the constitution reported by the convention of delegates in 
Philadelphia, on the 17th day of September, A. D. 1787, for the United States 
of America. Done in Convention, this 9th day of January, A. D. 1788. 






APPENDIX C. NO. 2. 


525 


5. COMMONWEALTH OF MASSACHUSETTS. 

The Convention haying impartially discussed, and fully considered, the 
Constitution for the United States of America, reported to Congress by the 
Convention of Delegates from the United States of America, and submitted to 
us by a resolution of the General Court of the said commonwealth, passed the 
25th day of October last past, — and acknowledging, with grateful hearts, the 
goodness of the Supreme Ruler of the universe, in affording the people of the 
United States, in the course of His providence, an opportunity, deliberately 
and peaceably, without fraud or surprise, of entering into an explicit aqd 
solemn compact with each other, by assenting to and ratifying a new Constitu¬ 
tion, in order to form a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defence, promote the general welfare, and 
secure the blessings of liberty to themselves and their posterity, — do, in the 
name and in behalf of the people of the commonwealth of Massa¬ 
chusetts, assent to and ratify the said Constitution for the United 
States of America. 


6. STATE OF GEORGIA. 

Whereas the form of a Constitution for the government of the United States 
of America, was, on the 17th day of September, 1787, agreed upon and 
reported to Congress by the deputies of the said United States convened in 
Philadelphia, which said Constitution is written in the words following, to-wit: 
[see the Constitution]. . . . 

Now know ye, that we, the delegates of the people of the state of 
Georgia, in Convention met, pursuant to the resolutions of the legislature 
aforesaid, having taken into our serious consideration the said Constitution, have 
assented to, ratified and adopted, and by these presents do, in virtue of the 
powers and authority to us given by the people of the said state for 
that purpose, for and in behalf of ourselves and constituents, fully and entirely 
assent to, ratify and adopt the said Constitution. 

Done in Convention, at Augusta, in the said state, on ‘the 2d day of Jan¬ 
uary, in the year of our Lord, 1788, and of the independence of the United 
States the twelfth. 


7. MARYLAND. 

We, the delegates of the people of the state of Maryland, having 
fully considered the Constitution of the United States of America, reported to 
Congress by the Convention of delegates from the United States of America, 
held at Philadelphia, on ther 17th day of September, in the year 1787, of which 
the annexed is a copy, and submitted to us by a resolution of the General 
Assembly of Maryland, in November session, 1787, do, for ourselves, and 
in the name and on the behalf of the people of this state, assent to 
and ratify the said Constitution. 


8. STATE OF SOUTH CAROLINA. 

In Convention of the people of the state of South Carolina, by their repre¬ 
sentatives, held in the city of Charleston, on Monday, the 12th day of May, 





526 


RATIFICATIONS. 


and continued by divers adjournments to Friday, the 23d day of May, Anno 
Domini, 1788, and in tbe 12th year of the independence of the United States 
of America. 

The Convention, having maturely considered the Constitution, or form of 
government, reported to Congress by the Convention of delegates from the 
United States of America, and submitted to them by a resolution of the legisla¬ 
ture of the state, passed the 17th and 18th days of February last, in order to 
form a more perfect union, establish justice, insure domestic tranquillity, pro¬ 
vide for the common defence, promote the general welfare, and secure the 
blessings of liberty to the people of the said United States, and their posterity, 
— do, in the name and behalf of the people of this state, hereby 
assent to and ratify the said Constitution. 

Done in convention, the 23d day of May, in the year of our Lord, 1788, and 
of the independence of the United States of America the twelfth. 


9. STATE OF NEW HAMPSHIRE. 

The Convention having impartially discussed and fully considered the 
Constitution for the United States of America, reported to Congress by the 
Convention of Delegates from the United States of America, and submitted to 
us by a resolution of the General Court of said state, passed the 14th day of 
December last past, and acknowledging with grateful hearts the goodness of 
the Supreme Ruler of the universe, in affording the people of the United States, 
in the course of His providence, an opportunity, deliberately and peaceably, 
without fraud or surprise, of entering into an explicit and solemn compact with 
each other, by assenting to and ratifying a new Constitution, in order, to form 
a more perfect union, establish justice, insure domestic tranquillity, provide for 
common defence, promote the general welfare, and secure the blessings of 
liberty to themselves and their posterity, — do, in the name and behalf of 
the people of the state of New Hampshire, assent to and ratify the 
said Constitution for the United States of America. 


10. VIRGINIA. 

We, the delegates of the people of Virginia, duly elected in pursuance 

of a recommendation from the General Assembly, and now met in Conven¬ 
tion, having fully and freely investigated and discussed the proceedings of the 
Federal Convention, and being prepared as well as the most mature delibera¬ 
tion hath enabled us, to decide thereon, — do, in the name and in behalf of 
the people of Virginia: declare and make known, that the powers granted 
undei the Constitution, being derived from the people of the United States, 
may be resumed by them, whensoever the same shall be perverted to their in¬ 
jury or oppression, and that every power not granted thereby remains with 
them, and at their will; that, therefore, no right of any denomination, can be 
cancelled, abridged, restrained, or modified by the Congress, by the Senate or 
House of Representatives, acting in any capacity, by the President, or any de¬ 
partment or officer of the United States, except in those instances in which 
power is given.by the Constitution for those purposes; and that among other 
essential rights, the liberty of conscience, and of the press, cannot be cancelled, 
abridged, restrained, or modified, by any authority of the United States. With 
these impressions, with a solemn appeal to the Searcher of all hearts for the 




APPENDIX C. NO. 2. 


527 


purity of our intentions, and under the conviction that whatsoever imperfec¬ 
tions may exist in the Constitution, ought rather to be examined in the mode 
prescribed therein, than to bring the Union into danger by a delay with a hope 
of obtaining amendments previous to the ratifications. 

We, the said delegates, in the name and in behalf of the people of 
Virginia, do, by these presents, assent to and ratify the Constitu¬ 
tion recommended, on the 17th day of September, 1787, by the Federal Con¬ 
vention, for the government of the United States, hereby announcing to all 
those whom it may concern, that the said Constitution is binding upon the 
said people, according to an authentic copy hereto annexed, in the words fol¬ 
lowing. [See the Constitution.] 

Done in Convention, this 26th day of June, 1788. 


11. STATE OF NEW YORK. 

We, the delegates of the people of the state of New York, duly 
elected and met in Convention, having maturely considered the Constitu¬ 
tion for the United States of America, agreed to on the 17th day of September, 
in the year 1787, by the convention then assembled at Philadelphia, in the 
commonwealth of Pennsylvania, (a copy whereof precedes these presents,) and 
having also seriously and deliberately considered the present situation of the 
United States, — do declare and make known, — etc., etc. . . . 

Under these impressions, and declaring that the rights aforesaid cannot be 
abridged or violated, and that the explanations aforesaid are consistent with 
the said Constitution, and in confidence that the amendments which shall have 
been proposed to the said Constitution will receive an early and mature con¬ 
sideration,— We, the said delegates, in the name and in the behalf of the 
people of the state of New York, do, by these presents, assent to 
and ratify the said Constitution. 

Done in Convention, at Poughkeepsie, in the county of Duchess, in the state 
of New York, the 26th day of July, in the year of our Lord 1788. 


12. STATE OF NORTH CAROLINA. 

In Convention. 

Whereas the General Convention which met at Philadelphia, in pursuance of 
a recommendation of Congress, did recommend to the citizens of the United 
States a Constitution or form of government in the following words, namely, — 

“ We, the people,” etc. [Here follows the Constitution of the United States, 
verbatim]. 

Resolved, That this Convention, in behalf of the freemen, citizens 
and inhabitants of the state of North Carolina, do adopt and ratify 
the said Constitution and form of government. 

Done in Convention, this 21st day of November, 1789. 


13. RHODE ISLAND. 

Ratification of the Constitution by the Convention of the state of Rhode 
Island, and Providence Plantations. 

We, the delegates of the people of the state of Rhode Island and 
Providence Plantations, duly elected and met in Convention, having 





528 


THE INTENT OF THE CONVENTION. 


maturely considered the Constitution for the United States of America, agreed 
to on the seventeenth day of September, in the year one thousand seven hun¬ 
dred and eighty-seven, by the Convention then assembled at Philadelphia, in 
the commonwealth of Pennsylvania (a copy thereof precedes these presents), 
and having also seriously and deliberately considered the present situation of 
this state, do declare and make known, etc., etc. . . . 

Under these impressions, and declaring that the rights aforesaid, cannot 
be abridged or violated, and that the explanations aforesaid are consistent with 
the said Constitution, and in confidence that the amendments hereafter men¬ 
tioned will receive an early and mature consideration, and, conformably to the 
fifth article of said Constitution, speedily become a part thereof,—We, the said 
delegates, in the name and in the behalf of the people of the state of 
Rhode Island and Providence Plantations, do, by these presents, 
assent to and ratify the said Constitution. 

Done in Convention, at Newport, in the county of Newport, in the state of 
Rhode Island and Providence Plantations, the twenty-ninth day of May, in the 
year of our Lord one thousand seven hundred and ninety, and in the four¬ 
teenth year of the independence of the United States of America. 


No. 3. 

EVIDENCES OF THE INTENT OF THE CONVENTION 

OF 1787. 

EXTRACTS FROM REPORT OF THE COMMISSIONERS TO THE 
ANNAPOLIS CONVENTION, 1786. 

That there are important defects in the system of the federal government, is 
acknowledged by the acts of all those states which have concurred in the 
present meeting; that the defects, upon a closer examination, may be found 
greater and more numerous than even these acts imply, is at least so far prob¬ 
able, from the embarrassments which characterize the present state of our 
national affairs, both foreign and domestic, as may reasonably be supposed to 
merit a deliberate and candid discussion, in some mode which will unite the sen¬ 
timents and councils of all the States. In the choice of the mode, your com¬ 
missioners are of opinion that a convention of deputies from the different States, 
for the special and sole purpose of entering into this investigation, and digesting 
a plan for supplying such defects as may be discovered to exist, will be entitled 
to a preference, from considerations which will occur without being particu¬ 
larized. 

Under this impression, your commissioners, with the most respectful defer¬ 
ence, beg leave to suggest their unanimous conviction, that it may essentially 
tend to advance the interests of the Union, if the States, by whom they have 
been respectively delegated, would themselves concur, and use their endeavors to 
procure the concurrence of the other States, in the appointment of commissioners 
to meet in Philadelphia, on the second Monday in May next, to take into con¬ 
sideration the situation of the United States, to provide such further provisions 
as shall appear to them necessary to render the Constitution of the federal gov¬ 
ernment adequate to the exigencies of the Union ; and to report such an act for 
that purpose to the United States in Congress assembled, as, when agreed to by 



APPENDIX C. NO. 3. 


529 


them, and afterwards confirmed by the legislatures of every State, will effect¬ 
ually provide for the same. 


Dated at Annapolis, Sept. 14, 1786. 

RESOLUTION 

adopted in Congress, Wednesday, February 21, 1787. 

Resolved, That, in the opinion of Congress, it is expedient that, on the 
second Monday in May next, a convention of delegates , who shall have been ap¬ 
pointed by the several States, be held at Philadelphia, for the sole and express 
purpose of revising the Articles of Confederation, and reporting to Congress and 
the several legislatures such alterations and provisions therein, as shall, when 
agreed to in Congress, and confirmed by the States, render the federal Constitu¬ 
tion adequate to the exigencies of government, and the preservation of the Union. 
[I. Ell. Deb. 120.] 


EXTRACTS FROM MR. RANDOLPH’S RESOLUTIONS, 

offered in the convention of States, May 29, 1787. 

“11. Resolved, that a republican government . . . ought to be guaranteed 
by the united states to each state. 

“ 12. Resolved, that provision ought to be made for the continuance of Con¬ 
gress . . . until a given day after the reform of the articles of union shall be 
adopted. . . . 

“13. Resolved, that provision ought to be made for the amendment of the 
articles of the union, whensoever it shall seem necessary. 

“ 14. Resolved, that the legislative, executive, and judiciary powers, within 
the several States, ought to be bound by oath, to support the Articles of 
Union. 

“15. Resolved, that the amendments which shall be offered to the Confedera¬ 
tion by the Convention, ought, at a proper time or times, after the approbation 
of Congress, to be submitted to an assembly or assemblies of representatives, 
recommended by the several legislatures, to be expressly chosen by the people, 
to consider and decide thereon.” 

The resolutions of Mr. Randolph were referred to Committee of the Whole, 
on the same day. [Y. Ell. Deb. 128.] 

THE SAME RESOLUTIONS 

as altered, amended, and agreed to, in committee of the whole house, 
June 19, 1787. 

“ 15. Resolved, That provision ought to be made for the continuance of 
Congress and their authorities, until a given day after the reform of the 
articles of union shall be adopted, and for the completion of all their en¬ 
gagements. 

“16. Resolved, That a republican constitution and its existing laws ought to 
be guaranteed to each State by the United- States. 

“ 17. Resolved, That provision ought to be made for the amendment of the 
articles of union whensoever it shall seem necessary. 

“ 18. Resolved, That the legislative, executive, and judiciary powers, within 
the several States, ought to be bound by oath to support the articles of 
union. 


34 



530 


THE INTENT OF THE CONVENTION. 


“ 19. Resolved, That the amendments which shall be offered to the Confed¬ 
eration by the Convention, ought, at a proper time or times after the approba¬ 
tion of Congress, to be submitted to an assembly or assemblies of representatives, 
recommended by the several legislatures to be expressly chosen by the people 
to consider and decide thereon.” [V. Ell. Deb. 189, 211.] 


THE SAME RESOLUTIONS 

were thereafter taken up and fully and finally deliberated upon by the con¬ 
vention itself for more than a month; and they then appear, as follows, in a 
series of twenty-three, unanimously referred to the committee on detail; who, 
on Aug. 6, — the convention having adjourned meanwhile, to await the com¬ 
mittee’s action, — reported them back in the shape of the present constitution y 
which was subsequently amended only in style and polish by the committee on 
revision and style, — the chairman of which was William S. J ohnson. No prin¬ 
ciple or idea was varied that has any reference to this great question— whether 
the States were nationalized or federalized ? 

“ XVIII. Resolved, That a republican form of government shall be guaran¬ 
teed to each State ; and that each State shall be protected against foreign and 
domestic violence. 

“ XIX. Resolved, That provision ought to be made for amendment of the 
articles of union whensoever it shall seem necessary. 

“ XX. Resolved, That the legislative, executive, and judiciary powers within 
the several States, and of the national government, ought to be bound by oath 
to support the articles of union. 

“ XXI. Resolved, That the amendments which shall be offered to the Confed¬ 
eration by the Convention ought, at a proper time or times after the approbation 
of Congress, to be submitted to an assembly or assemblies of representatives, 
recommended by the several legislatures, to be expressly chosen by the people, 
to consider and decide thereon.” [V. Ell. Deb. 375.] 


EXTRACT FROM THE PROCEEDINGS OF THE FEDERAL 
CONVENTION, MAY 30, 1787, 

showing that the Convention were determined not to depart from the federal 
idea. [See Madison’s Journal, V. Ell. Deb. 132.] 

Roger Sherman, from Connecticut, took his seat. The house went into 
Committee of the Whole on the State of the Union. Mr. Gorham was elected 
to the chair by ballot. 

The propositions of Mr. Randolph, which had been referred to the Commit¬ 
tee, being taken up, he moved, on the suggestion of Mr. G. Morris, that the 
first of his propositions, to wit: “Resolved, that the Articles of Confederation 
ought to be so corrected and enlarged as to accomplish the objects pro¬ 
posed by their institution, namely, common defence, security of liberty, and 
general welfare,” mutually be postponed, in order to consider the three 
following: — 

“1. That a union of States merely federal will not accomplish the objects 
proposed by the Articles of Confederation — namely, common defence, security 
of liberty, and general welfare. 

“2. That no treaty or treaties among the whole or part of the States, as 
individual sovereignties, would be sufficient. 



APPENDIX C. NO. 3. 


531 


“3. That a national government ought to be established, consisting of a 
supreme legislative, executive and judiciary.” 

The motion for postponing was seconded by Mr. G. Morris, and unanimously 
agreed to. Some verbal criticisms were raised against the first proposition, and 
it was agreed, on motion of Mr. Butler, seconded by Mr. Randolph, to pass on 
to the third, which underwent a discussion, less, however, on its general merits 
than on the force and extent of the particular terms national and supreme. 

On the question, as moved by Mr. Butler, on the third proposition, it was 
resolved in Committee of the Whole, “that a national government ought to be 
established, consisting of a supreme legislative, executive and judiciary.” 
Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Caro¬ 
lina, ay, 6; Connecticut, no, 1; New York, divided, [Colonel Hamilton, ay, 
Mr. Yates, no.] 


YATES’ VERSION 

of what occurred on said May 30, 1787, is as follows: [See “ Yates’ Minutes,” 
I. Ell. Deb. 391]. 

Wednesday, May 30, 1787. 

Convention met pursuant to adjournment. The Convention, pursuant to 
order, resolved itself into a committee of the whole. Mr. Gorham [a member 
from Massachusetts], appointed chairman. 

Mr. Randolph then moved his first resolve, to-wit: — 

“ Resolved, That the Articles of Confederation ought to be so corrected and 
enlarged, as to accomplish the objects proposed by their institution, namely, 
common defence, security of liberty, and general welfare,” 

Mr. G. Morris observed, that it was an unnecessary resolution, as the subse¬ 
quent resolutions would not agree with it. It was then withdrawn by the pro¬ 
poser, and, in lieu thereof, the following were proposed, to-wit: 

“ 1. Resolved, That a union of States, merely federal, will not accomplish the 
objects proposed by the Articles of Confederation, namely, common defence, 
security of liberty, and general welfare. 

“ 2. Resolved, That no treaty or treaties among any of the States, as sove¬ 
reign, will accomplish or secure their common defence, security of liberty, and 
general welfare. 

“ 3. Resolved, That a national government ought to be established, consist¬ 
ing of a supreme judicial, legislative and executive. 

In considering the question on the 1st resolve, various modifications were 
proposed, when Mr. Pinckney observed, at last, that, if the Convention agreed 
to it, it appeared to him that their business was at an end; for, as the powers 
of the house in general were to revise the present Confederation, and to alter 
or amend, as the case might require, to determine its insufficiency, or inca¬ 
pability of amendment, or improvement, must end in the dissolution of the 
powers. 

This remark had its weight; and in consequence of it, the 1st and 2d resolves 
were dropped, and the question agitated on the 3d. 

This last resolve had also its difficulties : the term supreme required explana¬ 
tion. It was asked whether it was intended to annihilate State govern¬ 
ments. It was answered, only so far as the powers intended to be granted 
to the new government should clash with the States, when the latter were to 
yield. 

For the resolution: Massachusetts, Pennsylvania, Delaware, Virginia, North 
Carolina, South Carolina. Against it Connecticut; New York, divided; Jersey 
and other states unrepresented.” 


532 


THE INTENT OF THE CONVENTION. 


THE NATIONAL IDEA REPROBATED BY THE CONVENTION. 

By the 19th of June, the Committee of the whole convention had discussed 
and agreed on the 23 resolutions to be found in V. Elliott’s Debates 189 — the 
first of them being as follows : 

“ Resolved that in the opinion of this committee a national government ought 
to be established, consisting of a supreme legislative, executive, and judiciary.” 

This brought the convention face to face with the national idea as a matter 
not merely descriptive or of common parlance, but legal, technical, and institu¬ 
tional. * 

Whereupon followed the remarkable elimination by the convention, on 
motion of Mr. Ellsworth, by striking out “national” from all the resolutions, 
and substituting the “ federal ” idea and phrase— “ the united states.” In 
those resolutions this change was made 2G times. The following extract from 
Madison’s Journal is decisive. [Ibid. 214.] 

“ The first resolution of the report of the Committee of the Whole being 
before the House. 

“ Mr. Ellsworth, seconded by Mr..Gorham, moved to alter it, so as to run ‘that 
the Government of the United States ought to consist of a supreme legislative, 
executive, and judiciary.’ This alteration, he said, would drop the word 
national, and retain the proper title ‘ the United States.’ He could not admit 
the doctrine that a breach of any of the Federal Articles could dissolve the 
whole. It would be highly dangerous not to consider the Confederation as 
still subsisting. He wished, also, the plan of the Convention to go forth as an 
amendment of the Articles of the Confederation, since, under this idea, the 
authority of the legislatures could ratify it. If they are unwilling, the people 
will be so too. If the plan goes forth to the people for ratification, several suc¬ 
ceeding conventions within the states would be unavoidable. He did not like 
these conventions. They were better fitted to pull down than to build up 
constitutions. 

“ Mr. Randolph did not object to the change of expression, but apprised the 
gentlemen who wished for it, that he did not admit it for the reasons assigned; 
particularly that of getting rid of a reference to the people for ratification. 

“ The motion of Mr. Ellsworth was acquiesced in, nem. con. 

“ The second resolution, ‘ That the national legislature ought to consist of two 
branches,’ being taken up, the word ‘ national ’ struck out, as of course.” 


THE LAST VAIN EFFORT TOWARDS NATIONALIZATION. 

Several attempts, mentioned in Part III. Chapter VII. were made in the Con¬ 
vention, to give the general government legislative control over the laws of the 
states. All of them failed. The last on Aug. 23, 1787, is peculiarly instructive, 
and appears as follows in Madison’s Journal. [V. Ell. Deb. 467 et seq.'] 

“ On the question, then to agree to the 18th clause of article VII. section 1 
[of the constitution as it was then formed. See Ibid. 376.] as amended, it 
passed in the affirmative nem. con. 

“ Mr. Charles Pinckney moved to add, as an additional power to be vested in 
the legislature of the United States, — ‘to negative all laws passed by the sev- . 
eral states, interfering, in the opinion of the legislature with the general inte¬ 
rests and harmony of the Union, provided that two-thirds of the members of 
each House assent to the same.’ 

“ This principle, he observed, had formerly been agreed to. He considered 
the precaution as essentially necessary. The objection drawn from the predomi- 



APPENDIX C. NO. 3. 


533 


nance of the large states had been removed by the equality established in the 
Senate. 

“Mr. Broom seconded the proposition. 

“ Mr. Sherman thought it unnecessary, the laws of the general government 
being supreme and paramount to the state laws, according to the plan as it now 
stands. 

“ Mr. Madison proposed that it should be committed. He had been, from the 
beginning, a friend to the principle, but thought the modification might be made 
better. 

“Mr. Mason wished to know how the power was to be exercised. Are all 
laws whatever to be brought up F Is no road nor bridge to be established 
without the sanction of the general legislature ? Is this to sit constantly, in 
order to receive and revise the state laws ? He did not mean, by these remarks, 
to condemn the expedient, but he was apprehensive that great objections would 
lie against it. 

“ Mr. Williamson thought it unnecessary and, having been already decided, a 
revival of the question was a waste of time. 

“ Mr. Wilson considered this as the key-stone wanted to complete the wide 
arch of government we are raising. The power of self-defence had been urged 
as necessary for the state government. It was equally necessary for the gene- 
eral government. The firmness of judges is not, of itself, sufficient. Som- 
thing further is requisite. It will be better to prevent the passage of an 
improper law, than to declare it void, when passed. 

“ Mr. Rutledge. If nothing else, this alone would damn, and ought to damn 
the Constitution. Will any state ever agree to be bound hand and foot in this 
manner ? It is worse than making mere corporations of them, whose by-laws 
would not be subject to this shackle. 

“ Mr. Ellsworth observed, that the power contended for would require, either 
that all laws of the state legislature should, previous to their taking effect, be 
transmitted to the general legislature, or be repeal able by the latter; or that 
the state executives should be appointed by the general government, and have 
a control over the state laws. If the last was meditated, let it be declared. 

“ Mr. Pinckney declared, that he thought the state executives ought to be 
so appointed, with such a control; and that it would be so provided, if another 
Convention should take place. 

“ Mr. Gouverneur Morris did not see the utility or practicability of the pro¬ 
position of Mr. Pinckney, but wished it to be referred to the consideration of a 
committee. 

“ Mr. Langdon was in favor of the proposition. He considered it as resolvable 
into the question, whether the extent of the national Constitution was to be 
judged of by the general, or the state governments. 

“ On the question for commitment, it passed in the negative. 

“ New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, ay, 5 ; Mas¬ 
sachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia, 
no, 6. 

“Mr. Pinckney then withdrew his proposition.” 


THE CONVENTION WAS UNANIMOUS EOR PEDERALIZATION. 

The final and unanimous sense of the Convention on this subject, is shown by 
the following extracts from the constitution as originally reported on August 6, 
and the action of the convention thereon. 

“We the people of the states of New Hampshire, Massachusetts, Rhode Island 



534 


THE INTENT OF THE CONVENTION. 


and Providence Plantations, Connecticut, New York, New Jersey, Pennsylva¬ 
nia, Delaware, Maryland, Virginia, North Carolina, South Carolina and Geor¬ 
gia do ordain, declare, and establish, the following constitution, for the govern¬ 
ment of ourselves and our posterity: — 

“ Article I. The style of the government shall be the United States of America. 

“ Article II. The government shall consist of supreme legislative, executive, 
and judicial powers. . . . 

“Tuesday, Aug. 7. In convention. The report of the committee of detail 
being taken up, . . . ” 

The preamble of the report was agreed to nem. con. So were Articles I and II. 

This was the final and unanimous decision of the convention of states on 
the subject in hand. It was never reversed or modified. It was equivalent to 
saying — this is a federation of sovereign commonwealths. 


THE LETTER OF THE CONVENTION TO CONGRESS, 

which General Washington wrote “by unanimous order of the Convention,” 
shows that the said convention unanimously intended to continue “the fede-* 
ral government of these states,” and that federal agency’s powers were all 

“ DELEGATED ” ill “ TRUST.” 

“We have now the honor to submit to the consideration of the United States 
in Congress assembled that Constitution which has appeared to us the most 
advisable. The friends of our country have long seen and desired, that the 
power of making war, peace and treaties; that of levying money and regulating 
commerce; and the correspondent executive and judicial authorities, should be 
fully and effectually vested in the general government of the Union. But the 
impropriety of delegating such extensive trust to one body of men is evident. 
Thence results the necessity of a different organization.” 

“It is obviously impracticable on the federal government of these states, to 
secure all rights of independent sovereignty [government?] to each, and yet pro¬ 
vide for the interest and safety of all. Individuals entering into society must 
give up a share of liberty, to preserve the rest. 

“ That it will meet the full and entire approbation of every state is not perhaps 
to be expected. But each will doubtless consider that had her interest alone 
been consulted, the consequences might have been particularly disagreeable 
and injurious to others.” . . . 


THE SYSTEM CONSIDERED AS FEDERAL BY THE FATHERS. 

EXTRACT FROM PENDLETON’S SPEECH IN VIRGINIA CONVENTION. 

But the power of the Convention is doubted. What is the power ? To 
propose. Not to determine. This power of proposing was very broad; it 
extended to remove all defects in government; the members of that Conven¬ 
tion who were to consider all the defects in our general government, were not 
confined to any particular plan. Were they deceived? This is the proper 
question here. Suppose the paper on your table dropped from one of the 
planets; the people found it, and sent us here to consider whether it was 
proper for their adoption; must we not obey them ? 




APPENDIX C. NO. 3. 


535 


FROM NUMBER XL OF THE FEDERALIST, BY MR. MADISON. 

The second point to be examined is, whether the Convention were authorized 
to frame, and propose this mixed Constitution. The powers of the Convention 
ought, in strictness, to be determined, by an inspection of the commissions 
given to the members by their respective constituents. As all of these, how¬ 
ever, had reference, either to the recommendation from the meeting at Annapo¬ 
lis, in Sept., 1786, or to that from Congress, in February, 1787, it will be 
sufficient to turn to these particular acts. 

From these two acts, it appears, 1st, that the object of the Convention, was 
to establish, in these States, a firm national government; 2d, that this govern¬ 
ment was to be such as would be adequate to the exigencies of government, and 
the'preservation of the Union; 3d, that those purposes were to be effected by 
alterations and provisions in the articles of Confederation , — as it is expressed 
in the act of Congress; or by such further provisions as should appear necessary 
— as it stands in the recommendatory act from Annapolis; 4th, that the altera¬ 
tions and provisions were to be reported to Congress, and to the states, in 
order to be agreed to by the former and confirmed by the latter. 

No stress, it is presumed, will, in this case, be laid on the title ; a change of 
that could never be deemed an exercise of ungranted power. Alterations in 
the body of the instrument are expressly authorized. New provisions therein 
are also expressly authorized. Here there is a power to change the title; to 
insert new articles; to alter old ones. Must it of necessity be admitted that 
this power is infringed, so long as a part of the old articles remain ? 

Will it be said that the fundamental principles of the Confederation wtre not 
within the purview of the Convention, and ought not to have been varied ? I 
ask, what are these principles F Do they require, that in the establishment of 
the constitution, the states should be regarded as distinct and independent 
sovereigns ? They are so regarded by the constitution proposed.” 

THE FATHERS REPUDIATED THE NATIONAL IDEA, 

in the state ratifying conventions. Two will be quoted for all: Said Fisher 
Ames in that of Massachusetts : “No argument against the new plan has made 
a deeper impression than this, that it will produce a consolidation of the states. 
This is an effect which all good men will deprecate. . . . The state govern¬ 
ments are essential parts of the system. . . . The senators represent the sove¬ 
reignty of the states in the quality of ambassadors of the states. ... A consoli¬ 
dation of the states . . . would subvert the new constitution, and against 
which this very article [the one providing for the senate] so much condemned, 
is our best security. Too much provision cannot be made against consolida¬ 
tion. . . . This article seems to be an excellence of the constitution, and 
affords just ground to believe that it will be, in practice as in theory, a federal 
republic. [II. Ell. Deb. 45.] 

Said Chancellor Pendleton, in the Virginia convention: “But it is 
represented to be a consolidated government, annihilating that of the states — 
a consolidated government, which so extensive a territory as the united states 
cannot admit of, without terminating in despotism. If this be such a govern¬ 
ment I will confess with my worthy friend [Henry] that it is inadmissable over 


536 


THE INTENT OF THE CONVENTION. 


such a territory as this country. ... It is the interest of the federal ta 
preserve the state governments; upon the latter the existence of the former 
depends. . . . Unless, therefore, there be state legislatures to continue the 
existence of congress, and preserve order and peace among the inhabitants, 
this general government . . . must itself be destroyed. ... I wonder how 
any gentleman could conceive an idea of the possibility of the former destroy¬ 
ing the latter.” [III. Ell. Deb. 39.] See also, to the same effect, the extracts 
from the Federalist in Appendix. 


APPENDIX D 


EXTRACTS FROM THE FEDERALIST, INCLUDING THE 
HOST OF NO. 39. 

This Appendix consists of many extracts from that master-piece of exposi¬ 
tion— the Federalist. It is decisive on the character of our general polity, 
while it entirely supports this book. The leading points proved by these 
quotations, are 

1. That the new compact was to form “a more perfect union” of states, 
which the fathers regarded as a confederacy. 

2. That the “essential component parts” of the new polity was common¬ 
wealths— named and provided for as parties to, and actors in, the system. 

3. That the federal government provided for by the compact was to operate 
on persons, and not on states. 

4. That Webster, Story, and the federal supreme court have committed a 
gross offence against sovereignty, by declaring that “ a change had been made 
from a confederacy of states to a different system.” 

The italics, etc., are all in the text [J. C. Hamilton’s edition], but the heavy¬ 
faced type is resorted to by the author to make the support of his contentions 
the more conspicuous. 

These extracts should be read thoughtfully in connection with Chapters VII. 
Part HI., and V. Part IV. 


THE FEDERALIST. 

Number I. 

[Hamilton.] 

“... I propose, in a series of papers, to discuss the following interesting 
particulars. . . . The utility of the Union to your political prosperity. . . . The 
insufficiency of the present confederation to preserve that Union. . . . The 
necessity of a government , at least equally energetic with the one proposed, to 
the attainment of this object. . . . The conformity of the proposed constitution 
to the principles of republican government. ... Its analogy to your own state 
constitution . . . and lastly, The additional security , which its adoption will 
afford to the preservation of that species of government , to liberty , and to 
property. ...” 



538 


EXTRACTS FROM THE FEDERALIST. 


Number IX. 

[Hamilton.] 

The Utility of the Union as a Safeguard against Domestic Faction 
and Insurrection. 

“. . . A Firm union will be of the utmost moment to the peace and liberty 
of the states,' as a barrier against domestic faction and insurrection. . . . 

“ So far are the suggestions of Montesquieu from standing in opposition to a 
general union of the states, that he explicitly treats of a Confederate Re¬ 
public as the expedient for extending the sphere of popular government, and 
reconciling the advantages of monarchy, with those of republicanism. 

“ ‘ It is very probable,’ says he, ‘ that mankind would have been obliged at 
length, to live constantly under the government of a Single Person, had they 
not contrived a kind of constitution, that has all the internal advantages of a 
republican, together with the external force of a monarchical government. I 
mean a Confederate Republic. 

“ ‘ This form of government is a convention, by which several smaller 
states agree to become members of a larger one, which they intend to form. 
It is a kind of assemblage of societies, that constitute a new one, 
capable of increasing by means of new associations, till they arrive to such 
a degree of power as to be able to provide for the security of the united 
body. 

“ ‘ A republic of this kind, able to withstand an external force, may support 
itself without any internal corruption. The form of this society prevents all 
manner of inconveniences. 

“ ‘ If a single member should attempt to usurp the supreme authority, he 
could not be supposed to have equal authority and credit in all the confederate 
states. . . . 

“ ‘ Should a popular insurrection happen in one of the confederate states, the 
others are able to quell. Should abuses creep into one part, they are reformed 
by those that remain sound. The state may be destroyed on the one side, and 
not on the other; the confederacy may be dissolved, and the confed¬ 
erates preserve their sovereignty. 

“ ‘ As this government is composed of small republics it enjoys the internal 
happiness of each; and, with respect to its external situation, it is possessed, 
by means of the association, of all the advantages of large monarchies.’ ” [Spirit 
of Laws, Book IX. Ch. I.] 

I have thought it proper to quote at length these interesting passages, be¬ 
cause they contain a luminous abridgment of the principal arguments in favor 
of the union, and must effectually remove the false impressions which a misap¬ 
plication of the other parts of the work was calculated to produce. . . . 

The definition of a confederate republic seems simply to be “ an assemblage 
of societies,” or an association of two or more states into one state. The ex¬ 
tent, modifications, and objects, of the federal authority are mere matters of 
discretion. So long as the separate organization of the members be not abol¬ 
ished, so long as it subsists by a constitutional necessity for local purposes, 
though it should be in perfect subordination to the general authority of the 
union it would still be, in fact and in theory, an association of states, or a 
confederacy. 


APPENDIX D. 


539 


Number XIY. 

[Madison.] 

"... The immediate object of the federal constitution is to secure the union 
of the thirteen primitive states, which we know to be practicable; and to add 
to them such other states as may arise in their own bosoms, or in their neigh¬ 
borhoods, which we cannot doubt to be equally practicable. . . . 

“ Happily for America, happily, we trust, for the whole human race, they [the 
people] pursued a new and more noble course. They accomplished a revolution 
which has no parallel in the annals of human society. They reared the fabrics 
of governments which have no model on the face of the globe. They formed 
the design of a great confederacy, which it is incumbent on their succes¬ 
sors to improve and perpetuate. If their works betray imperfections, we won¬ 
der at the fewness of them. If they erred most in the structure of the union, 
this was the work most difficult to be executed; this is the work which has 
been new modelled by the act of your convention, and it is that act 
on which you are now to deliberate and decide. ...” 


Number XY. 

[Hamilton.] 

“. . . The great, and radical vice, in the construction of the existing confed¬ 
eration, is in the principle of Legislation for States or Governments in their 
Corporate or Collective Capacities, and as contradistinguished from the 
Individuals of whom they consist. Though this principle does not run through 
all the powers delegated to the union; yet it pervades and governs those on 
which the efficacy of the rest depends. . . . 

“. . . We must extend the authority of the union, to the persons of the citi¬ 
zens — the only proper objects of government. 

“ Government implies the power of making laws. It is essential to the idea 
of a law, that it be attended with a sanction; or, in other words, a penalty or 
punishment for disobedience. If there be no penalty annexed to disobedience, 
the resolutions or commands which pretend to be laws will in fact, amount to 
nothing more than advice or recommendation. This penalty, whatever it may 
be, can only be inflicted in two ways : by the agency of courts and ministers of 
justice, or by military force; by the coercion of the magistracy, or the coer¬ 
cion of arms. The first kind can evidently apply only to men; the last kind 
must of necessity be employed against bodies politic or communities or states. 
It is evident that there is no process of a court, by which their observance of 
the laws can, in the last resort, be enforced. Sentences may be denounced 
against them for violation of their duty; but these sentences can only be car¬ 
ried into execution by the sword. In an association where the general author¬ 
ity is confined to the collective bodies of the communities that compose it, 
every breach of the laws must involve a state of war, and military execution 
must become the only instrument of civil obedience. Such a state of things 
can certainly not deserve the name of government, nor would any prudent man 
choose to commit his happiness to it. . . . ” 


540 


EXTRACTS FROM THE FEDERALIST. 


Number XX. 

[Hamilton & Madison.] 

. . . Experience is the oracle of truth; and when its responses are unequivo- 
cable, they ought to be conclusive and sacred. The important truth, which 
it unequivocally pronounces in the present case, is, that a sovereignty over sove¬ 
reigns, a government over governments, a legislation for communities, as con¬ 
tradistinguished from individuals; as it is a solecism in theory, so in practice, 
it is subversive of the order and ends of civil polity, by substituting violence 
in the place of law, or the destructive coercion of the sword, in the place of the 
mild and salutary coercion of the magistracy. . . . ” 


Number XXYII. 

[Hamilton.] 

". . . The hope of impunity, is a strong incitement to sedition; the dread of 
punishment, a proportionably strong discouragement to it. Will not the gov¬ 
ernment of the union, which, if possessed of a due degree of power, can call to 
its aid the collective resources of the whole confederacy, be more likely to 
repress the former sentiment, and to inspire the latter, than that of a single state, 
which can only command the resources within itself? A turbulent faction in a 
state, may easily suppose itself able to contend with the friends to the govern¬ 
ment in that state; but it can hardly be so infatuated, as to imagine itself equal 
to the combined efforts of the union. If this reflection be just, there is less 
danger of resistance from irregular combinations of individuals, to the au¬ 
thority, of the confederacy, than to that of a single member. 


Number XXXIX. 

[Madison.] 

“ The Conformity of the Plan to Republican Principles. An objec¬ 
tion in respect to the powers of the Convention, examined. 

** The last paper having concluded the observations, which were meant to 
introduce a candid survey of the plan of government reported by the con¬ 
vention, we now proceed to the execution of that part of our undertaking. 

The first question that offers itself is, whether the general form and aspect of 
the government is strictly republican? It is evident that no other form would 
be reconcilable with the genius of the people of America; with the fundamental 
principles of the revolution; or with that honorable determination which ani¬ 
mates every votary of freedom, to rest all our political experiments on the 
capacity of mankind for self-government. If the plan of the convention, there¬ 
fore, be found, to depart from the republican character, its advocates must 
abandon it as no longer defensible. 

On comparing the constitution planned by the convention, with the standard 
here fixed, we perceive at once, that it is, in the most rigid sense, conformable 


APPENDIX D. 


541 


to it. The house of representatives, like that of one branch at least of all the 
state legislatures, is elected immediately by the great body of the people. The 
senate, like the present congress, and the senate of Maryland, derives its ap¬ 
pointment indirectly from the people. The president is indirectly derived from 
the choice of the people, according to the example in most of the states. Even 
the judges with all other officers of the union, will, as in the several states, be the 
choice, though a remote choice, of the people themselves. The duration of 
the appointments is equally conformable to the republican standard, and to the 
model of the state constitutions. 

“ • . . But it was not sufficient, say the adversaries of the proposed constitu¬ 
tion, for the convention to adhere to the republican form. They ought, with 
equal care, to have preserved the federal form, which regards the union as a 
confederacy of sovereign states; instead of which, they have framed a national 
government, which regards the union as a consolidation of the states. And it 
is asked, by what authority this bold and radical innovation was undertaken P 
The handle which has been made of this objection requires that it should be 
examined with some precision. 

“ Without inquiring into the accuracy of the distinction on which the objec¬ 
tion is founded, it will be necessary to a just estimate of its force, first, to 
ascertain the real character of the government in question. . . . 

“ Eirst. In order to ascertain the real character of the government, it may 
be considered in relation to the foundation on which it is to be established'; 
to the sources from which its ordinary powers are to be drawn; to the opera¬ 
tion of those powers ; to the extent of them; and to the authority by which 
future changes in the government are to be introduced. 

“ On examining the first relation, it appears, on one hand, that the constitu¬ 
tion is to be founded on the assent and ratification of the people of America, 
given by deputies elected for the special purpose; but on the other, that this 
assent and ratification is to be given by the people, not as individ¬ 
uals composing one entire nation, but as composing the distinct 
and independent states to which they respectively belong. It is to be 
the assent and ratification of the several states, derived from the 
supreme authority in each state —.the authority of the people them¬ 
selves. The act, therefore, establishing the constitution, will not be a 
national , but a federal act. 

“ That it will be a federal, and not a national act, as these terms are under¬ 
stood by the objectors, the act of the people, as forming so many independent 
states, not as forming one aggregate nation, is obvious from this single consid¬ 
eration, that it is to result neither from the decision of a majority of the people 
of the union, nor from that of a majority of the states. It must result from 
the unanimous assent of the several states that are parties to it, differing no 
otherwise from their ordinary assent than in its being expressed, not by the 
legislative authority, but by that of the people themselves. Were the people 
regarded in this transaction as forming one nation, the will of the majority of 
the whole people of the United States would bind the minority; in the same 
manner as the majority in each state must bind the minority; and the will of 
the majority must be determined either by a comparison of the individual votes, 
or by considering the will of the majority of the states, as evidence of the will 
of a majority of the people of the United States. Neither of fhese rules has 
been adopted. Each state, in ratifying the constitution, is considered 
as a sovereign body, independent of all others, and only to be bound 
by its own voluntary act. In this relation, then, the new constitution will, 
if established, be a federal , and not a national constitution. 

“ The next relation is, to the sources from which the ordinary powers of gov¬ 
ernment are to be derived. The house of representatives will derive its powers 


542 


EXTRACTS FROM THE FEDERALIST. 


from the people of America, and the people will be represented in the same 
proportion, and on the same principle, as they are in a legislature of a particu¬ 
lar state. So far the government is national , not federal. The senate, on the 
other hand, will derive its powers from the states, as political and coequal 
societies; and these will be represented on the principle of equality in the senate, 
as they now are in the existing congress. So far the government is federal , not 
national. The executive power will be derived from a very compound source. 
The immediate election of the president is to be made by the states in their 
political characters. The votes allotted to them are in a compound ratio, which 
considers them partly as distinct and coequal societies; partly as unequal mem¬ 
bers of the same society. The eventual election, again, is to be made by the 
branch of the legislature which consists of the national representatives; but in 
this particular act, they are to be thrown into the form of individual delega¬ 
tions, from so many distinct and coequal bodies politic. From this aspect of 
the government, it appears to be of a mixed character, presenting at least as 
many federal as national features. 

“ The difference between a federal and national government, as it relates to the 
operation of the government , is, by the adversaries of the plan of the conven¬ 
tion, supposed to consist in this, that in the former, the powers operate on the 
political bodies composing the confederacy, in their political capacities; in the 
latter, on the individual citizens composing the nation, in their individual capaci¬ 
ties. On trying the constitution by this criterion, it falls under the national , 
not the federal character; though perhaps not so completely as has been under¬ 
stood. In several cases, and particularly in the trial of controversies to which 
states may be parties, they must be viewed and proceeded against in their col¬ 
lective and political capacities only. But the operation of the government on 
the people in their individual capacities, in its ordinary and most essential pro¬ 
ceedings, will, on the whole, in the sense of its opponents, designate it, in this 
relation, a national government. 

“ But if the government be national, with regard to the operation of its powers, 
it changes its aspect again, when we contemplate it in relation to the extent of 
its powers. The idea of a national government involves in it not only an au¬ 
thority over the individual citizens, but an indefinite supremacy over all per¬ 
sons and things, so far as they are objects of lawful government. Among a 
people consolidated into one nation, this supremacy is completely 
vested in the national legislature. Among communities united for 
particular purposes, it is vested partly in the general, and partly in 
the municipal legislatures. In the former case, all local authorities 
are subordinate to the supreme; and may be controlled, directed, 
or abolished at pleasure. In the latter, the local or municipal au¬ 
thorities form distinct and independent portions of the supremacy, 
no more subject within their respective spheres, to the general au¬ 
thority, than the general authority is subject to them within its own 
sphere. In this relation, then, the proposed government cannot be 
deemed a national one; since its jurisdiction extends to certain 
enumerated objects only, and leaves to the several states a residu¬ 
ary and inviolable sovereignty [i. e. government] over all other objects. 
It is true that in controversies relating to the boundary between the two juris¬ 
dictions, the tribunal which is ultimately to decide, is to be established under 
the general government. But this does not change the principle of the case. 
The decision is to be impartially made, according to the rules of the constitu¬ 
tion ; and all the usual and most effectual precaution are taken to secure this 
impartiality. Some such tribunal is clearly essential to prevent an appeal to 
the sword, and a dissolution of the compact; and that it ought to be estab¬ 
lished under the general, rather than under the local governments ; or, to speak 


APPENDIX D. 


543 


more properly, that it could be safely established under the first alone, is a 
position not likely to be combated. 

“ If we try the constitution by its last relation, to the authority by which 
amendments are to be made, we find it neither wholly national, nor wholly 
federal. Were it wholly national, the supreme and ultimate authority would 
reside in the majority of the people of the union; and this authority would be 
competent at all times, like that of a majority of every national society, to alter 
or abolish its established government. Were it wholly federal on the other 
hand, the concurrence of each state in the union would be essential to every 
alteration that would be binding on all. The mode provided by the plan of the 
convention, is not founded on either of these principles. In requiring more 
than a majority, and particularly, in computing the proportion by states , not by 
citizens, it departs from the national, and advances towards the federal char¬ 
acter. In rendering the concurrence of less than the whole number of states 
sufficient, it loses again the federal, and partakes of the national character. 

“ The proposed constitution, therefore, even when tested by the rules laid 
down by its antagonists, is, in strictness, neither a national nor a federal con¬ 
stitution; but a composition of both. In its foundation it is federal, not 
national; in the sources from which the ordinary powers of the government 
are drawn, it is partly federal, and partly national; in the operation of these 
powers, it is national, not federal; in the extent of them again, it is federal, 
not national; and finally in the authoritative mode of introducing amendments, 
it is neither wholly federal, nor wholly national.” 

Number XL. 

[Madison.] 

“ Will it be said, that the fundamental principles of the confederation were' not 
within the purview of the convention, and ought not to have been varied P I 
ask, what are these principles ? Do they require, that in the establishment of 
the constitution, the states should be regarded as distinct and independent 
sovereigns ? They are so regarded by the constitution proposed. ...” 

Number XLII. 

[Madison.] 

. . The provision of the federal articles on the subject of piracy, 
extends no further than to the establishment of courts for the trial of these 
offences. . . . 

The necessity of a superintending authority over the reciprocal trade of 
confederated states has been illustrated by other examples as well as our 
own. ...” 

Number XLY. 

[Madison.] 

“ The number of individuals employed under the constitution of the United 
States, will be much smaller than the number employed under the particular 
states. There will consequently be less of personal influence on the side of the 
former than of the latter. The members of the legislative, executive, and 
judiciary departments of thirteen and more states; the justices of peace, 
officers of militia, ministerial officers of justice, with all the county, corpora- 


544 


EXTRACTS FROM THE FEDERALIST. 


tion, and town officers, for three millions and more of people, intermixed, and 
having particular acquaintance with every class and circle of people, must 
exceed beyond all proportion, both in number and influence, those of every 
description who will De employed in the administration of the federal 
system. . . . 

“ It is true that the confederacy is to possess, and may exercise the power 
of collecting internal as well as external taxes throughout the states: but it is 
probable that this power will not be resorted to, except for supplemental pur¬ 
poses of revenue. . . . 

“ The powers delegated by the proposed constitution to the federal govern¬ 
ment, are few and defined. Those which are to remain in the state govern¬ 
ments, are numerous and indefinite. The former will be exercised principally 
on external objects, as war, peace, negotiation, and foreign commerce; with 
which last the power of taxation, will for the most part, be connected. The 
powers reserved to the several states will extend to all the objects, which, in 
the ordinary course of affairs, concern the lives, liberties, and properties of the 
people; ana the internal order, improvement, and prosperity of the state. . . . 

“ If the new constitution be examined with accuracy and candour, it will be 
found that the change which it proposes, consists much less in the addition of 
New Powers to the union, than in the invigoration of its Original Powers. 
The regulation of commerce, it is true, is a new power; but that seems to be 
an addition which few oppose, and from which no apprehensions are enter¬ 
tained. The powers relating to war and peace, armies and fleets, treaties and 
finance, with the other more considerable powers, are all vested in the existing 
congress by the articles of confederation. The proposed change does not en¬ 
large these powers; it only substitutes a more effectual mode of administering 
them. The change relating to taxation, may be regarded as the most impor¬ 
tant: and yet the present congress have as complete authority to Require 
of the states indefinite supplies of money for the common defence and general 
welfare, as the future congress will have to require them of individual citi¬ 
zens; and the latter will be no more bound than the states themselves have 
been, to pay the quotas respectively taxed on them. . . . ” 


Number XLVI. 

[Madison.] 

“ The federal and state governments are in fact but different agents 
and trustees of the people, instituted with different powers, and designated 
for different purposes. The adversaries of the constitution seem to have lost 
sight of the people altogether, in their reasonings on this subject; and to 
have viewed these different establishments, not only as mutual rivals and 
enemies, but as uncontrolled by any common superior, in their efforts to 
usurp the authorities of each other. These gentlemen must here be reminded 
of their error. They must be told, that the ultimate authority, wherever 
the derivative may be found, resides in the people alone; . . . ” 

Number LIV. 

[Hamilton.] 

“ It is not probable, that the richest state in the confederacy, will ever 
influence the choice of a single representative, in any other state. Nor will the 
representatives of the larger and richer states, possess any other advantage in 


APPENDIX D. 


545 


the federal legislature, over the representatives of other states, than what may 
result from their superior number alone; as far, therefore, as their superior 
wealth and weight may justly entitle them to any advantage, it ought to be 
secured to them by a superior share of representation. The new constitution 
is, in this respect, materially different from the existing confederation, as well 
as from that of the United Netherlands, and other similar confederacies. In 
each of the latter, the efficacy of the federal resolutions, depends on the sub¬ 
sequent and voluntary resolutions of the states composing the union. Hence 
the states, though possessing*an equal vote in the public councils, have an un¬ 
equal influence, corresponding with the unequal importance of these subsequent 
and voluntary resolutions. Under the proposed constitution, the fed¬ 
eral acts will take effect without the necessary intervention of the individual 
states. They will depend merely on the majority of votes in the federal legis¬ 
lature, and consequently each vote, whether proceeding from a larger or smaller 
state, or a state more or less wealthy or powerful, will have an equal weight 
and efficacy/’ 

Number LXXX. 

[Hamilton.] 

“ To judge with accuracy of the due extent of the federal judicature, it will 
be necessary to consider in the first place what are its proper objects. 

“ It seems scarcely to admit of controversy, that the judiciary authority of the 
union qught to extend to these several descriptions of cases: 1st. To all those 
which arise out of the laws of the united states, passed in pursuance of their 
just and constitutional powers of legislation; 2nd. To all those which concern 
the execution of the provisions expressly contained in the articles of union ; 
3d. To all those in which the united states are a party; 4th. To all those which 
involve the peace of the confederacy, whether they relate to the intercourse 
between the united states and foreign nations, or to that between the states 
themselves; 5th. To all those which originate on the high seas, and are of ad¬ 
miralty or maritime jurisdiction; and lastly to all those in which the state 
tribunals cannot be supposed to be impartial and unbiassed. ...” 

Number LXXXY. 

[Hamilton.] 

“ I never expect to see a perfect work from imperfect man. The result of the 
deliberations of all collective bodies, must necessarily be a compound as well 
of the errors and prejudices, as of the good sense and wisdom of the individ¬ 
uals of whom they are composed. The compacts which are to embrace 
thirteen distinct states, in a common bond of amity and union, must 
as necessarily be a compromise of as many dissimilar interests and inclinations. 
How can perfection spring from such materials ? . . . 

“ Every constitution for the United States must inevitably consist of a great 
variety of particulars, in which thirteen independent states are to be 
accommodated in their interests or opinions of interest. We may 
of course expect to see, in any body of men charged with its original formation, 
very different combinations of the parts upon different points. Many of those 
who form the majority on one question, may become the minority on a second, 
and, an association dissimilar to either, may constitute the majority on a third. 
Hence the necessity of moulding and arranging all the particulars 
which are to compose the whole, in such a manner as to satisfy all 
the parties to the compact. ...” 


35 


APPENDIX E. 


No 1. 

DECLARATIONS, BILLS OF RIGHTS &c. INCLUDING THE 
DECLARATION OF INDEPENDENCE. 

As — in the great argument between federalization and nationalization — a 
misuse is made of the Declaration of Independence I beg leave to present with 
it some of its antecedents, especially the acts of some of the nascent states, 
which authorized their delegations in congress to make for them the said dec¬ 
laration, while reserving to themselves absolutely the entire subject of establish¬ 
ing government. All the people were distinct states, and they associated as 
such, in declaring and-achieving independence; and they afterwards acted as 
such in confederating, and all their acts and declarations, without exception, 
are on the basis of voluntary union and co-operation of “ free sovereign and 
independent states.” 

PROCLAMATION OP MASSACHUSETTS Jan’y 22, 1776. 

By the great and general Court of the colony of Massachusetts Bay: A proc¬ 
lamation -The frailty of human nature, the wants of individuals, and 

the numerous dangers which surround them through the course of life, have, 
in all ages and in every country, impelled them to form societies and establish 
governments. 

As the happiness of the people is the sole end of government, so the consent 
of the people is the only foundation of it, in reason, morality, and the natural 
fitness of things. And therefore every act of government, every exercise of 
sovereignty against or without the consent of the people, is injustice, usurpa¬ 
tion and tyranny. 

It is a maxim that in every government there must exist somewhere a 
supreme, sovereign, absolute and uncontrollable power; but this power resides 
always in the body of the people, and it never was or can be delegated to one 
man or a few; the great Creator having never given to men a right to vest 
others with authority over them, unlimited either in duration or degree. 

When kings, ministers, governors, or legislators, therefore, instead of exer¬ 
cising the powers entrusted with them, according to the principles forms and 
proportions stated by the constitution, and established by the original compact 
prostitute those powers to the purposes of oppression; to subvert instead of 
supporting a free constitution; — to destroy instead of preserving the lives, 
liberties and properties of the people; — they are no longer to be deemed 
magistrates, vested with a sacred character, but become public enemies and 
ought to be resisted. 




APPENDIX E. NO. 1. 


547 


The administration of Great Britain, despising equally the justice humanity 
and magnanimity of their ancestors, and the rights, liberties, and courage of 
Americans, have, for a course of years, labored to establish a sovereignty in 
America, not founded on the consent of the people, but in the mere wiil of 
persons a' thousand leagues from us, whom we know not; and have endeav¬ 
ored to establish this sovereignty against our consent in all cases whatsoever. 

The colonies during this period, have recurred to every peaceable resource 
in a free constitution, by petitions and remonstrances, to obtain justice, which 
has been not only denied to them, but they have been treated with unexampled 
indignity and contempt; and at length open war of the most atrocious cruel 
and sanguinary kind has been commenced against them. To this an open, 
manly and successful resistance has hitherto been made ; thirteen colonies are 
now firmly united in the conduct of this most just and necessary war, under 
the wise councils of their congress. 

It is the Will of Providence, for wise, righteous and gracious Ends, that this 
Colony should have been singled out by the Enemies of America, as the first 
Object, both of their Envy and their Revenge; and after having been made 
the Subject of Several merciless and vindictive Statutes, one of which was 
intended to subvert our Constitution by Charter, is made the Seat of War. 

No effectual Resistance to the System of Tyranny prepared for us, could be 
made without either instant Recourse to Arms or a temporary Suspension of 
the ordinary Powers of Government, and Tribunals of Justice; to the last 
of which Evils, in hopes of a Speedy Reconciliation with Great Britain, upon 
equitable Terms, the Congress advised us to Submit; and Mankind has seen a 
Phenomenon without Example in the political World, a large and populous 
Colony Subsisting in great Decency and Order, for more than a Year under 
such a Suspension of Government. 

But as our Enemies have proceeded to such barbarous Extremities, com¬ 
mencing Hostilities upon the good People of this Colony, and with unprece¬ 
dented Malice exerting their Power to Spread the Calamities of Eire, Sword 
and Famine through the Land, and no reasonable Prospect remains of a 
Speedy Reconciliation with Great Britain, the Congress have resolved “ That 
no Obedience being due to the Act of Parliament for altering the Charter of the 
Colony of Massachusetts Bay, nor to a Governor or Lieutenant Governor who 
will not observe the Directions of, but endeavor to Subvert that Charter, the 
Governor and Lieutenant Governor of that Colony are to be considered as 
Absent and their Offices vacant; and as there is no Council there, and Incon¬ 
veniences arising from the Suspension of the Powers of Government are 
intolerable, especially at a time when General Gage hath actually levied War 
and is carrying on Hostilities against his Majesty’s peaceable and loyal sub¬ 
jects of that Colony; that, in order to conform as near as may be to the Spirit 
and Substance of the Charter, it be recommended to the Provincial Convention 
to write Letters to the Inhabitants of the Several Places which are intituled to 
Representation in Assembly, requesting thejn to chuse such Representatives, 
and that the Assembly when chosen, do elect Councillors; and that such As¬ 
sembly and Council exercise the Powers of Government, untill a Governor of 
his Majesty’s Appointment will consent to govern the Colony, according to its 

In Pursuance of which Advice, the good People of this Colony have chosen 
a full and free Representation of themselves, who, being convened in Assem¬ 
bly have elected a Council, who as the executive Branch of Government have 
constituted necessary Officers through the Colony. The present Generation, 
therefore, may be congratulated on the Acquisition of a Form of Government, 
more immediately in all its Branches under the Influence and Control 01 the 
People, and therefore more free and happy than was enjoyed by their Ances¬ 
tors ; But as a Government so popular can be supported only by universal 


548 


DECLARATIONS, BILLS OF RIGHTS, ETC. 


Knowledge and Virtue, in the Body of the People, it is the Duty of all Ranks 
to promote the Means of Education for the rising Generation, as well as true 
Religion, Purity of Manners, and Integrity of Life among all orders and 
Degrees. 

As an Army has become necessary for our Defence and in all free States the 
civil must provide for and controul the military Power, the Major Part of the 
Council have appointed Magistrates and Courts of Justice in every County, 
whose Happiness is so connected with that of the People that it is difficult to 
Suppose they can abuse their Trust. The Business of it is to see those Laws 
inforced which are necessary for the Preservation of Peace, Virtue and good 
Order, and the great and general Court expects and requires that all necessary 
Support and Assistance be given and all proper Obedience yielded to them, 
and will deeffi every Person who shall fail of his Duty in this Respect towards 
them, a disturber of the Peace of this Colony and deserving of exemplary 
Punishment. . . . 


In Council January 19, 1776. 

Ordered that the foregoing proclamation be read at the Opening of Every 
Superior Court of Judicature &c and Inferiour Court of Common Pleas and 
Court of General Sessions for the Peace within this Colony by their Respective 
Clerks, and at the Annual Townmeetings in March in each Town; and it is 
hereby Recommended to the several Ministers of the Gospel throughout this 
Colony to Read the Same in their Respective Assemblys on the Lords Day 
next after their Receiving it immediately after the Divine Service. 


Consented to — 


Sent down for Concurrence 


W. Sever 
Walter Spooner 
Caleb Cushing 
J Winthrop 
S Cushing 
John Whitcomb 
Jed? Foster 
Eldad Taylor 
Moses Gill 
M. Farley 
Sam‘ Hotten 


Cha. Chauncy PEREZ MORTON 

J. Palmer Dpy Secry 

John Taylor 
B. White 
James Prescott 


In the House of Representatives January 22 d 1776 
Read and Concurred. 

WILLIAM COOPER Speak r Pro Terri? 


Note. — The foregoing copied from Mass Archives, Vol. CXXXVIII. pp. 281-284. 


RESOLUTIONS OF VIRGINIA 
May 15th 1776. 

In the Virginia Convention—present 112 members. 

Wednesday May 15 th 1776. 

. . . Resolved unanimously, That the delegates appointed to represent 
this colony in the general Congress, be instructed to propose to that respect¬ 
able body to declare the united Colonies free and independent states, absolved 
from all allegiance to or dependence upon the crown or parliament of Great 
Britain, and that they give the assent of this Colony to such declaration and to 
whatever measures may be thought proper and necessary by the Congress for 
forming foreign alliances and a confederation of the colonies, at such time 



APPENDIX E. NO. 1. 


549 


and in the manner as to them shall seem best Provided that the power of 
forming government for and the regulation of the internal concerns of each 
colony, be left to the respective colonial legislatures. 

Resolved unanimously, That a committee be appointed to prepare a 
declaration of rights and such a plan of government as will be most likely 
to maintain peace and order in this colony, and secure substantial and equal 
liberty to the people. 

EDMUND PENDLETON President. 

It is recorded by Jefferson [his Works, Vol. I. p. 10, also I. Ell. Deb. 56] 
that “in Congress June 7, 1776/’ on the above basis, “the delegates of 
Virginia, moved, in obedience to instructions from their constituents, that 
the congress should declare that these united colonies are, and of right ought 
to be, tree and independent states . . . [and] that a confederation be formed 
to bind the colonies more closely together.” 

On June 25, 1776, congress recorded receipt of the declaration of the 
deputies of Pennsylvania, met in provincial conference, that they were will¬ 
ing to concur in a vote of congress, declaring the united colonies free and 
independent states. [See p. 277 supra.'] 

On June 28, it is recorded that Prancis Hopkinson and other delegates were 
instructed by New Jersey as follows: “If you shall judge it necessary or 
expedient for this purpose, we empower you to join in declaring the united 
colonies independent of Great Britain, entering into a confederation for union 
and common defence. 

The position and views of New York on this great subject, precisely quad¬ 
rate with the theory hereof, and are to be found on p. 336 supra. 

Maryland, June 28, “authorized and empowered” her deputies in con¬ 
gress to “ concur in declaring the united colonies free and independent states; 
in forming such further compact and confederation between them,” etc. 

Ultimately thirteen independent wills became “ unanimous ” on the great 
subject; but on June 11 it was found that several colonies “were not yet 
matured for falling from the parent stem, but that they were fast advancing to 
that state;” so the subject was postponed to July 1, and Jefferson, Adams, 
Eranklin, Sherman, and Livingston were appointed a committee to prepare a 
declaration in the meanwhile. 

July 2, 1776, Congress agreed to the following resolution : — 

“ Resolved That these united colonies are, and, of right, ought to be, free and 
independent States; that they are absolved from all allegiance to the British 
crown, and that all political connection between them and the state of Great 
Britain is, and ought to be totally dissolved.” 

July 4, 1776, the Declaration of Independence was agreed to, and probably 
the first signatures were affixed, though I believe it was a month before all 
the deputies signed. 

The following is the instrument as reported by the above-named committee, 
and duly signed by the deputies from the different states. The baseless or 
perverted ideas concerning this immortal manifesto will be appreciated by 
noting the following facts : — 

1. The declarants were nascent states in congress, —these being the people 
in their only form and capacity for political action, represented as bodies in 
congress by their deputies. 

2. “ Unanimous ” means that the thirteen independent and equal minds were 
of one mind in said declaration. 

3. Each mind or will, as shown by the resolutions or instructions, was con¬ 
sidered as giving the only authority the said Congress had to make the said 
declaration. It was a revolutionary body, with large discretion, ex necessitate ; 
but the States themselves were, as societies of people, the revolutionists. 


550 


DECLARATIONS, BILLS OF RIGHTS, ETC. 


4. These bodies willed to act together. Such coaction was entirely volun¬ 
tary. And, when they formulated their government, they declared and 
pledged the faith of all to each, that each was sovereign, and that no powers 
whatever were out of her and in Congress, but such as were delegated or 
intrusted by the state they belonged to. 

5. The word “united” is written with a small u , showing that it was used 
in the well-known sense of an adjective or describing word, qualifying states 
or societies of people, — commonwealths. Fifteen or twenty years ago several 
able men agreed with me as to the significancy of this fact, and within the last 
two or three years Prof. Yon Holst told me he regarded it as very important 
in the controversy. 

6. The Declaration could have had nothing to do with the formation of 
either society or government, for societies were fully formed and complete for 
action, before it was made; and they proceeded afterwards — acting through 
their home governments, already independently formed — to create a federal 
one, by articles of union. 

7. And, finally, it does not profess to touch the subject either of society- 
forming or government-forming, but simply declares principles, and reasons 
for sundering British ties, and winds up by declaring them sundered. 


In CONGRESS, July 4, 1776. 

GLi)t unanimous Ucclaration of t&e thirteen united states of America, 

£2Sfjen in the Course of human events, it becomes necessary for one people 
to dissolve the political bands which have connected them with another, and 
to assume, among the powers of the earth, the separate and equal station to 
which the Laws of Nature and of Nature’s God entitle them, a decent respect 
to the opinions of mankind requires that they should declare the causes which 

impel them to the separation.-We hold these truths to be self-evident, 

that all men are created equal; that they are endowed by their Creator with 
certain unalienable Rights ; that among these are Life, Liberty, and the pursuit 
of Happiness. — That to secure these rights. Governments are instituted 
among Men, deriving their just powers from the consent of the governed, — 
That whenever any Form of Government becomes destructive of these ends, it 
is the Right of the People to alter or to abolish it, and to institute new Govern¬ 
ment, laying its foundation on such principles and organizing its powers in 
such form, as to them shall seem most likely to effect their Safety and Happi¬ 
ness. Prudence, indeed, will dictate that Governments long established should 
n6t be changed for light and transient causes; and accordingly all experience 
hath shown, that mankind are more disposed to suffer, while evils are suffer¬ 
able, than to right themselves by abolishing the forms to which they are 
accustomed. But when a long train of abuses and usurpations, pursuing 
invariably the same Object, evinces a design to reduce them under absolute 
Despotism, it is their right, it is their duty, to throw off such Government, 
and to provide new Guards for their future security. — Such has been the 
patient sufferance of these Colonies; and such is now the necessity which 
constrains them to alter their former Systems of Government. The history of 
the present King of Great Britain is a history of repeated injuries and usurpa¬ 
tions, all having in direct object the establishment of an absolute Tyranny over 

these States. To prove this, let Facts be submitted to a candid world. - 

He has refused his Assent to Laws, the most wholesome and necessary for the 

public good.-He has forbidden his Governors to pass Laws of immediate 

and pressing importance, unless suspended in their operation till his Assent 



APPENDIX E. NO. 1. 


551 


should be obtained; and when so suspended he has utterly neglected to attend 

to them.-He has refused to pass other Laws for the accommodation of large 

districts of people, unless those people would relinquish the right of Repre¬ 
sentation in the Legislature, a right inestimable to them and formidable to 

tyrants only.-He has called together legislative bodies at places unusual, 

uncomfortable, and distant from the depository of their Public Records, for 

the sole purpose of fatiguing them into compliance with his measures.- 

He has dissolved Representative Houses repeatedly, for opposing with manly 

firmness his invasions on the rights of the People.-He has refused for 

a long time, after such dissolution, to cause others to be elected; whereby the 
Legislative Powers, incapable of Annihilation, have returned to the People at 
large for their exercise ; the State remaining in the mean time exposed to all 

the dangers of invasion from without, and convulsions within.-He has 

endeavoured to prevent the Population of these States; for that purpose 
obstructing the Law for Naturalization of Foreigners; refusing to pass others 
to encourage their migrations hither, and raising the conditions of new 

Appropriations of Lands.-He has obstructed the Administration of Justice, 

by refusing his Assent to Laws for establishing Judiciary Powers.-He has 

made Judges dependent-on his Will alone, for the tenure of their offices, and 

the amount and payment of their salaries.-He has erected a multitude of 

New Offices, and sent hither swarms of Officers to harrass our People, and eat 

out their substance-He has kept among us in times of peace, Standing 

Armies without the Consent of our legislatures.-He has affected to ren¬ 
der the Military independent of aud superior to the Civil Power. --He has 

combined with others to subject us to a jurisdiction foreign to our constitu¬ 
tion, and unacknowledged by our laws; giving his Assent to their Acts of 
pretended Legislation: — For Quartering large bodies of armed troops among 
us . — Por protecting them, by a mock Trial, from Punishment for any Mur¬ 
ders which they should commit on the Inhabitants of these States : — For 
cutting off our Trade with all parts of the world: — For imposing Taxes 
on us without our Consent: — For depriving us in many cases, of the bene¬ 
fits of Trial by Jury : — For transporting us beyond Seas to be tried for 
pretended offences : — For abolishing the free System of English Laws in 
a neighbouring Province, establishing therein an Arbitrary government, and 
enlarging its Boundaries, so as to render it at once an example and fit instru¬ 
ment for introducing the same absolute rule into these Colonies.-For 

taking awav our Charters, abolishing our most valuable Laws, and altering 
fundamentally the Forms of our Governments: — For suspending our own 
Legislatures, and declaring themselves invested with power to legislate for us 
in all cases whatsoever. — He has abdicated Government here, by declaring us 

out of his Protection and waging War against us.-He has plundered our 

seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our 
people. —— He is at this time transporting large Armies of foreign Mer¬ 
cenaries to compleat the works of death, desolation and tyranny, already 
begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most 

barbarous ages, and totally unworthy the Head of a civilized nation.- 

He has constrained our fellow Citizens taken Captive on the high Seas to bear 
Arms against their Country, to become the executioners of their friends and 

Brethren, or to fall themselves by their Hands.-He has excited domestic 

insurrections amongst us, and has endeavoured to bring on the inhabitants of 
our frontiers, the merciless Indian Savages, whose known rule of warfare, is an 
undistinguished destruction of all ages, sexes and conditions. In every stage 
of these Oppressions We have Petitioned for Redress in the most humble 
terms : Our repeated Petitions have been answered only by repeated injury. 
A Prince, whose character is thus marked by every act which may define a 
Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting 


552 DECLARATIONS, BILLS OF RIGHTS, ETC. 


in attentions to our British brethren. We have warned them from time to 
time of attempts by their legislature to extend an unwarrantable jurisdiction 
over us. We have reminded them of the circumstances of our emigration and 
settlement here. We have appealed to their native justice and magnanimity, 
and we have conjured them by the ties of our common kindred to disavow 
these usurpations, which would inevitably interrupt our connections and 
correspondence. They too have been deaf to the voice of justice and of con¬ 
sanguinity. We must, therefore, acquiesce in the necessity, which denounces 
our Separation, and hold them, as we hold the rest of mankind, Enemies in 
War, in Peace Friends. 

Wit, therefore, the Representatives of the united States of America, in General 
Congress Assembled, appealing to the Supreme Judge of the world for the 
rectitude of our intentions, do, in the Name, and by Authority of the good 
People of these Colonies, solemnly publish and declare, That these United 
Colonies are, and of Right ought to be jfrcc anti JfnhepentJmt States ; that they 
are Absolved from all Allegiance to the British Crown, and that all political 
connection between them and the State of Great Britain, is and ought to be 
totally dissolved ; and that as Free and Independent States, they have full 
Power to levy War, conclude Peace, contract Alliances, Establish Commerce, 
and to do all other Acts and Things which Independent States may of right do. 
-And for the support of this Declaration, with a firm reliance on the Pro¬ 
tection of divine Providence, we mutually pledge to each other our Lives, our 
Fortunes and our sacred Honor. 


Richard Henry Lee. 

Thomas Lynch, Jun. 

Abra. Clark. 

Arthur Middleton. 

John Penn. 

John Hancock. 

John Adams. 

Edward Rutledge. 

Robt. Treat Paine. 

George Wythe. 

Elbridge Gerry. 

Robt. Morris. 

Step. Hopkins. 

Benjamin Rush. 

William Ellery. 

Benj. Franklin. 

Roger Sherman. 

John Morton. 

Saml. Huntington. 

Geo. Clymer. 

Wm. Williams. 

Jas. Smith. 

Oliver Wolcott. 

Geo. Taylor. 

Matthew Thornton. 

James Wilson. 

Wm. Hooper. 

Geo. Ross. 

Joseph Hewes. 

Caesar Rodney. 

Wm. Floyd. 

Geo. Read. 

Phil. Livingston. 

Tho. M‘Kean. 

Frans. Lewis. 

Geo. Walton. 

Lewis Morris. 

Wm. Whipple. 

John Hart. 

Saml. Adams. 

Th. Jefferson. 

Josiah Bartlett. 

Benj. Harrison. 

Rich. Stockton. 

Thos. Nelson, Jr. 

Jno. Witherspoon. 

Francis Lightfoot Lee. 

Fras. Hopkinson. 

Carter Braxton. 

Samuel Chase. 

Button Gwinnett. 

Wm. Paca. 

Lyman Hall. 

Thos. Sto'ne. 

Thos. Hayward, Jun. 

Charles Carroll of Carrollton. 

1 

Washington, D. C., January 28th, 1874. 


I certify that the foregoing copy is a fac-simile of the original Declaration of 
Independence now on deposit in the United States Patent Office at Washington, D C. 

C. Delano, Secretary of the Interior. 



APPENDIX E. NO. 2. 


553 


No. 2. 

BILLS OF RIGHTS OR INSTITUTES OF FREEDOM. 

This appendix presents those sacred institutes of freedom, called “ Bills of 
Rights,” which are really in the character of protests by the people, when 
forming government, concerning those natural and God-given rights which 
they keep out of constitutions and above government; and which, therefore, no 
ruler has the right to control or even touch. 

Beside the Virginia “ Bill of Rights,” of 1776,—the first declared in Ameri¬ 
ca— now to be given, and the preamble and declaration of rights in the 
constitution of Massachusetts, which follow the Virginia one, — the student 
should read the English “ Magna Chart a f “Petition of Right,” and “Bill of 
Rights,” keeping it in mind that, in our case, these are declarations by 
the people of their sovereign rights over, and governing, their rulers; wliile 
the English declarations are the grants by kings of privileges to their 
subjects. 


VIRGINIA BILL OF RIGHTS. 

When, on the 15th of May, 1776, the Convention of Virginia instructed 
their delegates in Congress to propose to that body to declare the United 
Colonies free and independent States, it, at the same time, appointed a com¬ 
mittee to prepare a declaration of rights and such a plan of government as 
would be most likely to maintain peace and order in the colony, and secure 
substantial and equal liberty to the people. On subsequent days the com¬ 
mittee was enlarged; Mr. George Mason was added to it on the" 18th. The 
declaration of rights was, on the 27th, reported by Mr. Archibald Cary, the 
chairman of the committee, and-, after being twice read, was ordered to be 
printed for the perusal of members. It was considered in committee of the 
whole on the 29th of May, and the 3d, 4th, 5th, and 10th of June. It was 
then reported to the house with amendments. On the 11th, the convention 
considered the amendments, and having agreed thereto, ordered that the de¬ 
claration [with the amendments] be fairly transcribed and read a third time. 
This having been done on the 12th, the declaration was then read a third time 
and passed nem. con. A manuscript copy of the first draft of the declaration, 
just as it was drawn by Mr. Mason, 1 is in the library of Virginia. The 
declaration as it passed is as follows : 

A Declaration of Rights made by the Representatives of the good people of 
VIRGINIA, assembled in full and free Convention, which rights do pertain 
to them and their posterity as the basis and foundation of government. 

1. That all men are by nature equally free and independent, and have certain 
inherent rights, of which, when they enter into a state of society, they cannot 
by any compact deprive or divest their posterity; namely, the enjoyment of 
life and liberty, with the means of acquiring and possessing property, and 
pursuing and obtaining happiness and safety. 

2. That all power is vested in, and consequently derived from, the people; 
that magistrates are their trustees and servants, and at all times amenable 
to them. 

3. That government is, or ought to be, instituted for the common benefit, 
protection, and security of the people, nation, or community; of all the various 
modes and forms of government, that is best, which is capable of producing 


1 Va. Hist. Reg., Jan., 18J9, p. 29. 


554 


DECLARATIONS, BILLS OF RIGHTS, ETC. 


the greatest degree of happiness and liberty, and is most effectually secured 
against the danger of mal-administration; and that, when any government 
snail be found inadequate or contrary to these purposes, a majority of the 
community hath an indubitable, inalienable, and indefeasable right to reform, 
alter, or abolish it, in such manner as shall be judged most conducive to the 
public weal. 

4. That no man, or set of men, are entitled to exclusive or separate emolu¬ 
ments or privileges from the community, but in consideration of public services; 
which not being descendable, neither ought the offices of magistrate, legislator, 
or judge to be hereditary. 

5. That the legislative and executive powers of the state should be separate 
and distinct from the judiciary; and that the members of the two first may be 
restrained from oppression, by feeling and participating the burthens of the 
people, they should at fixed periods be reduced to a private station, return 
into that body from which they were originally taken, and the vacancies be 
supplied by frequent, certain, and regular elections, in which all, or any part 
of the former members to be again eligible, or ineligible, as the laws shall 
direct. 

6. That election of members to serve as representatives of the people, in 
assembly, ought to be free; and that all men, having sufficient evidence of 
permanent common interest with, and attachment to, the community, have the 
right of suffrage, and cannot be taxed or deprived of their property for public 
uses, without their own consent, or that of their representatives so elected, 
nor bound by any law to which they have not, in like manner, assented, for 
the public good. 

* 7. That all power of suspending laws, or the execution of laws, by any 
authority, without consent of the representatives of the people, is injurious to 
their rights, and ought not to be exercised. 

8.. That, in all capital or criminal prosecutions, a man hath a right to 
demand the cause and nature of his accusation, to be confronted with the 
accusers and witnesses, to call for evidence in his favor, and to a speedy trial 
by an impartial jury of his vicinage, without whose unanimous consent he 
cannot be found guilty; nor can he be compelled to give evidence against him¬ 
self; that no man can be deprived of his liberty, except by the law of the land, 
or the judgment of his peers. 

9. That excessive bail ought not to be required, nor excessive fines imposed, 
nor cruel nor unusual punishments inflicted. 

10. That general warrants, whereby an officer or messenger may be com¬ 
manded to search suspected places without evidence of a fact committed, or to 
seize any person or persons not named, or whose offence is not particularly 
described and supported by evidence, are grievous and oppressive, and ought 
not to be granted. 

11. That in controversies respecting property, and in suits between man and 
man, the ancient trial by jury is preferable to any other, and ought to be 
held sacred. 

12. That the freedom of the press is one of the greatest bulwarks of liberty, 
and can never be restrained but by'despotic governments. 

13. That a well regulated militia, composed of the body of the people, 
trained to arms, is the proper, natural, and safe defence of a free state; that 
standing armies, in time of peace, should be avoided, as dangerous to liberty; 
and that in all cases the military should be under strict subordination to, and 
governed by, the civil power. 

14. That the people have a right to uniform government; and therefore, 
that no government separate from, or independent of, the government of Vir¬ 
ginia, ought to be erected or established within the limits thereof. 



APPENDIX E. NO. 2. 


555 


15. That no free government, or the blessing of liberty, can be preserved 
to any people, but by a firm adherence to justice, moderation, frugality and 
virtue, and by a frequent recurrence to fundamental principles. 

16. That religion, or the duty which we owe to our Creator, and the manner 
of discharging it, can be directed only by reason and conviction, not by force or 
violence; and therefore, all men are equally entitled to the free exercise of 
religion, according to the dictates of conscience; and that it is the mutual 
duty of all to practise Christian forbearance, love, and charity towards each 
other. 


MASSACHUSETTS BILL OF RIGHTS. 
CONSTITUTION OF MASSACHUSETTS. 

A constitution, or frame of government, agreed upon by the delegates of the 
people of Massachusetts Bay, in convention, begun and held at Cambridge, on 
the first of September, 1779, and continued, by adjournment, to the second of 
March, 1780. 

PREAMBLE. 

The end of the institution, maintenance, and administration of government, 
is to secure the existence of the body politic; to protect it, and to furnish the 
individuals who compose it with the power of enjoying, in safety and tran¬ 
quillity, their natural rights and the blessings of life; and, whenever these great 
objects are not obtained, the people have a right to alter the government, and 
to take measures necessary for their safety, prosperity, and happiness. 

The body politic is formed by a voluntary association of individ¬ 
uals. It is a social compact, by which the whole people covenants 
with each citizen, and each citizen with the whole people, that all 
shall be governed by certain laws for the common good. It is the duty of the 
people, therefore, in framing a constitution of government, to provide for an 
equitable mode of making laws, as well as for an impartial interpretation and 
a faithful execution of them ; that every man may at all times find his security 
in them. 

We, therefore, the people of Massachusetts, acknowledging, with grateful 
hearts, the goodness of the Great Legislator of the Universe, in affording us in 
the course of his providence, an opportunity, deliberately and peaceably, with¬ 
out fraud, violence, or surprise, of entering into an original, explicit, and 
solemn compact with each other ; and of forming a new constitution of 
civil government, for ourselves and posterity; and devoutly imploring his direc¬ 
tion in so interesting a design — do agree upon, ordain, and establish, the fol¬ 
lowing declaration of rights and frame of government, as the constitution of the 
commonwealth of Massachusetts. 


PART I. 

A DECLARATION OF THE RIGHTS. 
of the Inhabitants of the Commonwealth of Massachusetts. 

Article 1. All men are born free and equal, and have certain natural, es¬ 
sential, unalienable rights, among which may be named the right of enjoying 
and defending their lives and liberties; that of acquiring, possessing and pro¬ 
tecting property; in fine, that of seeking and obtaining their safety and happi¬ 
ness. 



556 


DECLARATIONS, BILLS OF RIGHTS, ETC. 


2. It is the right, as well as the duty of all men in society, publicly and at 
stated seasons, to worship the Supreme Being, the Great Creator and Pre¬ 
server of the Universe. And no subject shall be hurt, molested, or restrained, 
in his person, liberty, or estate, for worshipping God in the manner and seasons 
most agreeable to the dictates of his own conscience ; or for his religious pro¬ 
fession or sentiments; provided he does not disturb the public peace, or ob¬ 
struct others in their religious worship. 

3. As the happiness of a people, and the good order and preservation of 
civil government, essentially depend upon piety, religion, and morality; and as 
these cannot generally be diffused throughout the community, but by the insti¬ 
tution of a public worship of God, and of public institutions in piety, religion, 
and morality; therefore to promote their happiness, and to secure the good 
order of their government, the people of this commonwealth have a right to 
invest their legislature with power to authorize and require, and the legislature 
shall, from time to time, authorize and require the several towns, parishes, and 
precincts, and other bodies politic, or religious societies, to make suitable pro¬ 
vision at their own expense, for the institution of the public worship of God, 
and for the support and maintenance of public Protestant teachers of piety, 
religion, and morality in all cases, where such provision shall not be made vol¬ 
untarily. 

All the people of the commonwealth have also a right to, and do, invest 
their legislature with authority to enjoin upon all the subjects ail attendance 
upon the public teachers, as aforesaid, at stated times and seasons, if there be 
any one whose instructions they can conscientiously and conveniently attend: 

Provided, notwithstanding, the several towns, parishes, precincts, and other 
bodies politic or religious societies, shall at all times have the exclusive right 
of electing their public teachers, and of contracting with them for their support 
and maintenance. 

All moneys paid by the subject to the support of public worship, and of the 
public teachers aforesaid, shall, if he require it, be uniformly applied to the 
support of the teacher or teachers of his own religious sect or denomination, 
provided there be any on whose instructions he attends; otherwise it may be 
paid towards the support of the teacher or teachers of the parish or precinct 
in which the said moneys are raised. 

And every denomination of Christians demeaning themselves peaceably, and 
as good subjects of the commonwealth, shall be equally under the protection 
of the law; and no subordination of any sect or denomination to another shall 
ever be established by law. 

4. The people of this commonwealth have the sole and exclusive 
right of governing themselves, as a free, sovereign and independent 
state ; and do and for ever hereafter shall exercise and enjoy every power, 
jurisdiction and right which is not, or may not hereafter be, by them expressly 
delegated to the United States of America in congress assembled. 

5. All power residing originally in the people, and being derived 
from them, the several magistrates and officers of government vested 
with authority, whether legislative, executive or judicial, are their substi¬ 
tutes and agents, and are at all times accountable to them. 

6. No man, or corporation, or association of men, have any other title to 
obtain advantages; or particular and exclusive privileges, distinct from those 
of the community, than what arises from services rendered to the public. And 
this title being in nature neither hereditary nor transmissible to children, or 
descendants, or relations of blood, the idea of a man born a magistrate, law¬ 
giver or judge is absurd and unnatural. 

7. Government is instituted for the common good, for the pro¬ 
tection, safety, prosperity and happiness of the people, and not for the 


APPENDIX E. NO. 2. 


557 


profit, honor or private interest of any one man, family, or any one class of 
men. Therefore the people alone have an incontestible, unalienable 
and indefeasible right to institute government, and to reform, alter 
or totally change the same when their protection, safety, prosperity and 
happiness require it. 

8. In order to prevent those who are vested with authority from becoming 
oppressors, the people have a right, at such periods and in such manner as they 
shall establish by the frame of government, to cause their public officers to 
return to private life, and to fill up vacant places by certain and regular elec¬ 
tions and appointments. 

9. All elections ought to be free, and all the inhabitants of this common¬ 
wealth having such qualifications as they shall establish by their frame of 
government, have an equal right to elect officers and to be elected for public 
employments. 

10. Each individual of the society has a right to be protected by it in the 
enjoyment of his life, liberty and property according to the standing laws. He 
is obliged, consequently, to contribute his share to the expense of this pro¬ 
tection, to give his personal services, or an equivalent, when necessary. But 
no part of the property of any individual can with justice be taken from him, 
or applied to the public use, without his own consent or that of the representa¬ 
tive body of the people. In fine, the people of this commonwealth are not 
controllable by any other laws than those to which their constitutional repre¬ 
sentative body have given their consent. And whenever the public exigencies 
require that the property of any individual should be appropriated to public 
uses, he shall receive a reasonable compensation therefor. 

11. Every subject of the commonwealth ought to find a certain remedy, by 
having recourse to the laws, for all injuries or wrongs which he may receive 
in his person, property or character. He ought to obtain right and justice 
freely and without being obliged to purchase it, completely and without any 
denial, promptly and without delay, conformably to the laws. 

12. No person shall be held to answer for any crime or offence until the 
same is fully and plainly, substantially and formally described to him ; or be 
compelled to accuse or furnish evidence against himself. And every person 
shall have a right to produce all proofs that may be favorable to him, to meet 
the witnesses against him face to face, and be fully heard in his defence, by 
himself or counsel, at his election. And no person shall be arrested, imprisoned, 
or despoiled or deprived of his property, immunities, or privileges, put out of 
the protection of the law, exiled, or deprived of his life, liberty or estate but by 
the judgment of his peers or the law of the land. 

And the legislature shall not make any law that shall subject any person to 
a capital or infamous punishment (excepting for the government of the army 
and navy) without trial by jury. . ... 

13. In criminal prosecutions the verification of facts, m the vicinity where 
they happen, is one of the greatest securities of the life, liberty and property 
of the citizen. 

14. Every person has a right to be secure from all unreasonable searches ot 
his person, his houses, his papers, and all his possessions. All warrants, there¬ 
fore, are contrary to this right if the cause or foundation of them be not pre¬ 
viously supported by oath or affirmation: and if the order in a warrant to a 
civil officer to make search in all suspected places, or to arrest one or more 
suspected persons, or to seize their property, be not accompanied with a specific 
designation of the person or object of search, arrest or seizure. 

And no warrant ought to be issued but in such cases and with the formalities 
prescribed by the laws. . . 

15. In all controversies concerning property, and in all suits between two or 


558 


DECLARATIONS, BILLS OF RIGHTS, ETC. 


more persons (except in cases in which it has heretofore been otherwise used 
and practised), the parties have a right to a trial by jury; and this method of 
procedure shall be held sacred, unless in cases arising on the high seas, and 
such as relate to mariners’ wages, the legislature shall hereafter find it neces¬ 
sary to alter it. . 

16. The liberty of the press is essential to the security of freedom in a state; 
it ought not, therefore, to be restrained in this commonwealth. 

17. The people have a right to keep and bear arms for their common defence. 

And as in time of peace armies are dangerous to liberty, they ought not to be 
maintained without consent of the legislature; and the military power shall 
always be held in exact subordination to the civil authority, and be governed 
by it. t . 

18. A frequent recurrence to the fundamental principles of the constitution, 
and a constant adherence to those of piety, justice, moderation, temperance, 
industry and frugality, are absolutely necessary to preserve the advantages of 
liberty, and to maintain a free government. The people ought, consequently, 
to have a particular attention to all those principles in the choice of their offi¬ 
cers and representatives; and they have a right to require of their lawgivers 
and magistrates an exact and constant observance of them in the formation and 
execution of all laws necessary for the good administration of the commonwealth. 

19. The people have a right, in an orderly and peaceable manner to assemble 
to consult on the common good, give instructions to their representatives, and 
to request of the legislative body, by the way of addresses, petitions or remon¬ 
strances, redress of the wrongs done them and of the grievances they suffer. 

20. The power of suspending the laws, or the execution of the laws, ought 
never to be exercised but by the legislature, or by authority derived from it, 
to be exercised in such particular cases only as the legislature shall expressly 
provide for. 

21. The freedom of deliberation, speech and debate in either house of the 
legislature is so essential to the rights of the people that it cannot be the foun¬ 
dation of any accusation or prosecution, action or complaint in any other court 
or place whatever. 

22. The legislature ought frequently to assemble for the redress of griev¬ 
ances, for correcting, strengthening and confirming the laws, and for making 
new laws, as the common good may require. 

23. No subsidy, charge, tax, impost or duties ought to be established, fixed, 
laid or levied under any pretext whatever, without the consent of the people or 
their representatives in the legislature. 

24. Laws made to punish for actions done before the existence of such laws, 
and which have not been declared crimes by preceding laws, are unjust, oppres¬ 
sive and inconsistent with the fundamental principles of a free government. 

25. No person ought in any case or in any time to be declared guilty of 
treason or felony by the legislature. 

26. No magistrate or court of law shall demand excessive bail or sureties, 
impose excessive fines, or inflict cruel or unusual punishments. 

27. In time of peace no soldier ought to be quartered in any house without 
the consent of the owner; and in time of war such quarters ought not to be 
made but by the civil magistrate in manner ordained by the legislature. 

28. No person can in any case be subjected to law martial, or to any penal¬ 
ties or pains of that law (except those employed in the army or navy, and 
except the militia in actual service), but by the authority of the legislature. 

29. It is essential to' the preservation of the rights of every individual, his 
life, liberty, property and character, that there be an impartial interpretation 
of the laws and administration of justice. It is the right of every citizen to 
be tried by judges as free, impartial and independent as the lot of humanity 




APPENDIX E. NO. 2. 


559 


will admit. It is therefore, not only the best policy, but for the security of 
the rights of the people and of every citizen, that the judges of the supreme 
judicial courts should hold their offices as long as they behave themselves well, 
and that they should have honorable salaries, ascertained and established by 
standing laws. 

30. In the government of this commonwealth the legislative department 
shall never exercise the executive and judicial powers, or either of them ; the 
executive shall never exercise the legislative and judicial powers, or either of 
them; the judicial shall never exercise the legislative and executive powers, or 
either of them; to the end that it may be a government of laws, and not of men. 

PART II. 

FRAME OF GOVERNMENT. 

The people inhabiting the territory formerly called the province of Massa¬ 
chusetts Bay do hereby solemnly and mutually agree with each other 
to form themselves into a free, sovereign and independent body 
politic or state, by the name of The Commonwealth of Massachu¬ 
setts. 

[Here follows the constitution of the government.] 


THE TENTH AMENDMENT. 

There was much clamor against the federal constitution when it was under 
discussion, because it did not contain a bill of rights. It was replied that all 
rights and powers remained in the people, except those actually expressed in 
the constitution; and that a bill of rights was therefore an absurdity; and be¬ 
sides, that it was dangerous, in implying that all rights not expressed as kept 
out , might in future be assumed to be in the constitution. 

But the clamor went on, and in the Massachusetts convention, to escape 
defeat, the friends proposed to recommend an amendment declaring what every 
advocate said was the case anyhow, viz. that all powers not delegated 
are reserved. When Gov. Hancock made this “ conciliatory proposition,” 
Samuel Adams turned to be an advocate, saying it was “equivalent to a sum¬ 
mary of a bill of rights,” and meant precisely what the second article of the 
first federal constitution did, viz., that “each state retained her sove¬ 
reignty, and every power and right not expressly delegated to 
the united states in congress assembled.” And he wrote to Gerry and 
Lee in congress, to urge the adoption of the said amendment, so that the 
people should see clearly “the distinction between the powers delegated to 
congress, and the sovereign authority of the several states, which is the pal¬ 
ladium of the rights of the people.” 

The different forms in which the states proposed the prospective tenth 
amendment are here given, because the perverters say it means that the nation 
reserved to the states such powers as it chose, reserving all others to the state 
governments or to itself—the people. 

This idea will be found ridiculous when the different forms as proposed by 
the states are presented, showing what they meant and thought they were 
proposing. 

t The form used by Massachusetts was as follows : “All powers not expressly 
delegated by the aforesaid constitution are reserved by the several states, to 
be by them exercised.” [II. Ell. Deb. 197.] 



560 


DECLARATIONS, BILLS OF RIGHTS, ETC. 


South Carolina’s version: “ The states retain every power not expressly 
relinquished by them, and vested in the general government of the union. 
[I. Ell. Deb. 325.] 

General C. C. Pinckney said: “ It is admitted by all that the rights not ex¬ 
pressed were reserved by the several states.” [IV. Ibid. 286.] 

Maryland’s version is, that “ congress shall exercise no power but what is 
expressly delegated by this constitution.” [II. Ibid. 550.] 

North Carolina expressed it thus: “That each state in the union shall 
respectively retain every power, jurisdiction, and right, which is not by this 
constitution delegated to the congress of the united states, or to the de¬ 
partments of the general government. Nor shall the said congress, nor any 
department of the said government, exercise any act of authority over any 
individual in any of the said states, but such as can be justified under some 
power particularly given in this constitution; but the said constitution shall 
be considered at all times a solemn instrument defining the extent of their 
authority, and defining the limits which they cannot rightfully in any instance 
exceed.” [IV. Ibid. 249; Va. Gaz. Sept. 4, 1788.] 

New Hampshire’s expression reads thus: “All powers not expressly 
and particularly delegated by the aforesaid constitution, are reserved by the 
several states to be by them exercised.” [I. Ell. Deb. 326.] 

New York’s version was put thus: “ That every power, jurisdiction, and 
right, which is not by the said constitution clearly delegated to the congress of 
the united states, remains to the people of the several states, or to their re- 
spcctive ^state governments, to whom they may have granted the same.” 

Rhode Island wanted the following amendment: “ The united states shall 
guarantee to each state its sovereignty, freedom, and independence, and every 
power, jurisdiction, and right, which is not by this constitution expressly dele¬ 
gated to the united states.” 


APPENDIX F 


WEBSTER’S REAL CONSTITUTIONAL VIEWS. 

Seven years after Webster had been elected to Congress from New Hamp¬ 
shire, and when he was in the full maturity of years and intellect, he, as a states¬ 
man, was called upon by one of the most enlightened communities of America, 
for his best considered counsel on that momentous subject — then agitating 
the whole country — the admission of Missouri into the union of states, with 
or without conditions. The following document contains his most deliberate 
views: — 

The italics are in the text except what contains the following points of Web¬ 
ster’s doctrine: — 

1. That “the only parties to the constitution” ‘contemplated originally * 
were “ the 13 confederated states” 

2. That its provisions “ rest on compact and plighted faith 

3. That all new states must come in by compact . 

4. That our union is “ the American confederacy ” 


A MEMORIAL 

TO THE 

CONGRESS OF THE UNITED STATES, 

ON THE 

Subject of Restraining the Increase of Slavery in New States, 

TO BE ADMITTED INTO THE UNION. 


Prepared in 


pursuance of a vote of the inhabitants of Boston and its vicinity, assembled at the 
State House, on the third day of December, A. D., 1819. 


BOSTON: 

SEWELL PHELPS, PRINTER, No. 5 COURT STREET. 
18X9. 


The Committee appointed by a vote of the meeting holden in the State House, on the 3d 
instent, toTepare. a memorial^ Congress, on the subject of the prohibition of Slavery in the 
New States, submit the following : DANIEL WEBSTER, 

GEORGE BLAKE, 
JOSIAH QUINCY. 
JAMES T. AUSTIN. 

„ K 1C1Q JOHN GALLISON. 

Boston, December 15,1819. 


36 








MEMORIAL. 


To the Senate and House of Representatives of the United States , in Congress assembled: 

The undersigned, inhabitants of Boston and its vicinity, beg leave most 
respectfully and humbly to represent; That the question of the introduction of 
Slavery into the New States, to be formed on the west side of the Mississippi 
River, appears to them to be a question of the last importance to the future 
welfare of the United States. If the progress of this great evil is ever to be 
arrested, it seems to the undersigned that this is the time to arrest it. A false 
step taken now cannot be retraced; and it appears to us that the happiness of 
unborn millions rests on the measures, which Congress may, on this occasion, 
adopt. Considering this as no local question, nor a question to be decided by 
a temporary expediency, but as involving great interests of the whole of the 
United States, and affecting deeply and essentially those objects of common 
defence, general welfare, and the perpetuation of the blessings of liberty, for 
.which the Constitution itself was formed, we have presumed in this way, to 
offer our sentiments and express our wishes to the National Legislature. And 
as various reasons have been suggested, against prohibiting Slavery in the New 
States, it may perhaps be permitted to us to state our reasons, both for believ¬ 
ing that Congress possesses the Constitutional power to make such prohibition 
a condition, on the admission of a New State into the Union, and that it is just 
and proper that they should exercise that power. 

And, in the first place, as to the Constitutional authority of Congress. The 
Constitution of the United States has declared, that “ the Congress shall have 
power to dispose of and make all needful rules and regulations respecting the 
Territory, or other property belonging to the United States; and nothing in 
this Constitution shall be so construed as to prejudice the claims of the United 
States, or of any particular State.” It is very well known that the saving in 
this clause of the claims of any particular State was designed to apply to claims 
by the then existing States of territory, which was also claimed by the United 
States as their own property. 

It has, therefore, no bearing on the present question. The power, then, of 
Congress over its own territories is, by the very terms of the Constitution 
unlimited. It may make all “ needful rules and regulations; ” which of course 
include all such regulations as its own views of policy or expediency shall from 
time to time dictate. If, therefore, in its judgment, it be needful for the 
benefit of a Territory to enact a prohibition of slavery, it would seem to be as 
much within its power of legislation, as any other ordinary act of local policy. 
Its sovereignty being complete and universal, as to the Territory, it may exer¬ 
cise over it the most ample jurisdiction in every respect. It possesses in this 
view all the authority which any State Legislature possesses over its own Ter¬ 
ritory : and if a State Legislature may, in its discretion, abolish or prohibit 
Slavery within its own limits, in virtue of its general legislative authority, for 
the same reason Congress also may exercise the like authority over its own 
Territories. And that a State Legislature, unless restrained by some ctonsti- 
tional provision, may so do, is unquestionable, and has been established by 
general practice. 

If then, Congress possess unlimited powers of government over its Territo¬ 
ries, it may certainly from time to time vary, control and modify its legislation 



APPENDIX F. 


563 


as it pleases. The Territories, as such, can have no rights hut such as are 
conferred by Congress; and it is morally bound to adopt such measures as are 
best calculated to promote the permanent interests and security of these Terri¬ 
tories, as well as to secure the future well-being of the Union. Without an 
enabling act of Congress, no Territory or portion of Territory belonging to 
the United States can be created into a State, or form a constitution of gov¬ 
ernment, or become discharged of its Territorial obedience; and if Congress 
may grant to any of its Territories this privilege, it may also most clearly, as 
it seems to us, in its discretion, refuse it. 

It is not obliged to admit it to become a State, if it be not satisfied that such 
admission will conduce as well to its own good as to the good of the Union. In 
this respect Congress stands, in relation to its Territories, like a State in rela¬ 
tion to any portion of its own Territory, which requests to be separated and 
formed into a New State. No person has ever doubted that the question as 
to such separation was a question of expediency, resting in the sound discre¬ 
tion of the State; • and that it may not be claimed as matter of right, unless in 
virtue of some compact, establishing such right. No person has ever 
doubted that any State, in acceding to a division of its Territory, 
and the formation of a New State, has always possessed the right 
to impose its own terms and conditions as a part of the grant. 
The ground of this right is the exclusive possession of sove¬ 
reignty, with which the State is not compellable to part, and if 
it does part with it, it may annex all such conditions and rules as it deems fit 
for its own security and for the permanent good of the citizens of the divided 
Territory. Such was the case of Virginia, when .she acceded to the separation 
of the District of Kentucky and allowed it to become an independent State. 
Such is the case of the recent separation of the District of Maine from Mas¬ 
sachusetts. In each of these cases a considerable number of fundamental 
conditions were offered to the Districts as the sole grounds, upon which the 
separation could be allowed; and not a doubt was ever entertained, that these 
conditions were within the legitimate exercise and authority of these States. 
These conditions were accepted by Kentucky, and have been accepted by 
Maine, and it was never imagined, that they in any respect prevented either 
from possessing all the proper attributes of State sovereignty. They have 
never Keen viewed in any other light than as just restrictions, not upon essen¬ 
tial State rights, but upon an unlimited exercise of sovereignty,. which may be 
injurious to rights already vested in the parent State, or its citizens. And if 
Virginia and Massachusetts may, by virtue of their sovereign rights, impose 
conditions upon their grants of their own Territorial jurisdiction, for the same 
reason, it would seem, that the United States may impose any like conditions, 
according to their own sound discretion. And a construction of this clause of 
the constitution of the United States, which should inhibit Congress from 
annexing conditions to the act enabling any Territory to form a State govern¬ 
ment, because it would impair the sovereignty of the State so formed, would 
equally affect the like conditions annexed by a State to a like act in favour of a 
portion of its own Territory. A construction, which would lead to such con¬ 
sequences, cannot be a sound one. It would lead to the most injurious results, 
and absolve all the New States, which have been admitted into the Union since 
the year 1791, from conditions, which have been hitherto held to be inviolably 
binding upon them. It would be also repugnant to the comprehensive language 
of this clause of the constitution, and to the uniform practice, which has pre¬ 
vailed under it from the earliest period of the formation of New States to the 
present time. No State has ever admitted a New State to be formed in its 
own bosom, without annexing conditions, and no act has passed Congress 
enabling any of its Territories to become States, which has not, in like man- 


564 


WEBSTER’S REAL CONSTITUTIONAL VIEWS. 


ner, annexed important fundamental conditions to the act. And if conditions 
may be annexed, it depends solely upon the wisdom of Congress what such 
conditions shall be. They may embrace everything not incompatible with the 
possession of those federal rights, which ail admission into the Union confers 
upon the New State. As to such rights, they must, by the nature of the 
case, be an implied exception. The remarks that have hitherto been made, 
have proceeded upon the supposition that Congress are not morally bound, 
either by the Treaty of Cession or by any compact with the inhabitants, 
to pass an act for the erection of the New State, without imposing con¬ 
ditions. 

These observations, so far, have been confined to the Constitutional authority 
of Congress flowing directly from the clause which has been mentioned. Here 
then is the case of an express power given in plain terms; and by another 
clause of the Constitution, Congress have express authority “ to make all laws 
necessary and proper for carrying that power into execution. 55 But other 
clauses may well be called in aid of this construction, applicable to all cases 
whatsoever, in which a New State seeks to be admitted into the Union. The 
Constitution provides that “ New States may be admitted into 
the Union.” The only parties to the Constitution, contemplated 
by it originally, were the thirteen confederated States. It was per¬ 
ceived that the Territory, already included within these States, might be 
beneficially divided and organized" under separate governments, and that the 
Territories already belonging to the United States might, and in good faith 
ought, to participate in the privileges of the federal Union. It was therefore 
wisely provided that Congress, in lohich all the Old States were represented , 
should have authority to admit New States into the Union, whenever in its 
judgment such an act would be beneficial to the public interests. But it was 
at the same time provided that no New State should be formed or erected 
within the jurisdiction of any other State, etc., without the consent of the 
Legislatures of the States concerned, as well as of the Congress. It is observ¬ 
able, that the language of the Constitution is, that New States may (not shall) 
be admitted into the Union. It is therefore a privilege which Congress may 
withhold or grant, according to its discretion. If it may give its consent; it 
may also refuse it, and no New State can have a right to compel Congress to 
do that, which in its judgment is not fit to be done. If Congress have authority 
to withhold its consent, it has also authority to give that consent either abso¬ 
lutely, or upon condition; for there is nothing in the Constitution which 
restricts the manner or the terms of that consent. It is observable, too, that 
where a New State is to be erected within the limits of an Old State, the con¬ 
sent of the State Legislature is as necessary as that of Congress. Now it will 
not, we suppose, be contended, that the State Legislature may not grant its 
consent upon conditions; and if so, Congress must have the same right also, 
for the consent of the State Legislatures and of Congress is required by the 
same clause, and the construction which fixes the meaning of “ consent 55 as to 
the one, must, in order to maintain consistency, fix it as to the other. And 
here it might be again asked, if the conditions of Virginia, annexed to her con¬ 
sent that Kentucky should become a State, were not binding upon the latter, 
and upon Congress. It appears to the memorialists perfectly clear, that since 
Congress has a discretionary authority as to the admission of New States into 
the Union, it may impose whatever conditions it pleases as terms of that con¬ 
sent; and this clause, alone, which applies as well to New States formed from 
Old States, as to those formed from the territories of the Union, completely 
establishes the rights, for which the memorialists contend. 

The creation of a New State is, in effect, a compact between Congress and 
the inhabitants of the proposed State. Congress would not probably claim the 


APPENDIX F. 


565 


power of compelling the inhabitants of,Missouri to form a constitution of their 
own, and come into the Union as a State. It is as plain, that the inhabitants 
of that Territory have no right of admission into the Union, as a State, without 
the consent of Congress. Neither party is bound to form this connection. It 
can be formed only by the consent of both. What, then, prevents Congress, 
as one of the stipulating parties, to propose its terms ? and if the other party 
assents to these terms, why do they not effectually bind both parties ? Or if 
the inhabitants of the Territory do not choose to accept the proposed terms, 
but prefer to remain under a Territorial government, lias Congress deprived 
them of any right, or subjected them to any restraint, which, in its discretion, 
it had not authority to do ? If the admission of New States be not the discre¬ 
tionary exercise of a constitutional power, but, in all cases, an imperative duty, 
how is it to be performed ? If the Constitution means that Congress shall 
admit New States, does it mean that Congress shall do this on every applica¬ 
tion, and under all circumstances ? Or if this construction cannot be admitted, 
and if it must be conceded that Congress must, in some respects, exercise its 
discretion, on the admission of New States, how is it to be shown, that that 
discretion may not be exercised, in regard to this subject, as well as in regard 
to others ? 

The Constitution declares, “ that the migration or importation of such per¬ 
sons as any of the States, now existing , shall think proper to admit, shall not 
be prohibited by the Congress, prior to the year 1808.” It is most manifest 
that the Constitution does contemplate, in the very terms of this clause, that 
Congress possess the authority to permit the migration or importation of 
Slaves; for it limits the exercise of this authority for a specific period of time, 
leaving it to its full operation ever afterwards. And this power seems neces¬ 
sarily included in the authority which belongs to Congress, “to regulate com¬ 
merce with foreign nations and among the several States” No person has 
ever doubted that the prohibition of the foreign Slave Trade was completely 
within the authority of Congress, since the year 1808. And why? Certainly, 
only because it is embraced in the regulation of foreign commerce ; and if so, it 
may for the like reason be prohibited, since that period, between the States. 
Commerce in Slaves, since the year 1808, being as much subject to the regula¬ 
tion of Congress as any other commerce, if it should see fit to enact that no 
Slave should ever be sold from one State to another, it is not perceived how 
its Constitutional right to make such provision could be questioned. It would 
seem to be too plain to be questioned, that Congress did possess the power, 
before the year 1808, to prohibit the migration or importation of Slaves into its 
Territories, (and in point of fact it exercised that power) as well as into any 
New States; and that its authority after that year, might be as fully exercised 
to prevent the migration or importation of Slaves into any of the Old States. 
And if it may prohibit. New States from importing Slaves, it may surely, as we 
humbly submit, make it a condition of the admission of such States into the 
Union, that they shall never import them. In relation, too, to its own Territories, 
Congress possess a more extensive authority and may, in various other ways, 
effect the same object. It might for example make it an express condition of 
its grants of the soil, that the owners shall never hold Slaves; and thus pre¬ 
vent the possession of Slaves from ever being connected with the ownership of 

As corroborative of the views, which have been already suggested, the 
memorialists would respectfully call the attention of Congress to the history of 
the national legislation, under the Confederation as well as under the present 
Constitution, on this interesting subject. Unless the memorialists greatly mis¬ 
take, it will demonstrate the sense of the nation at every period of its legislation 
to have been, that the prohibition of Slavery was no infringement of any just 


566 


WEBSTER’S REAL CONSTITUTIONAL VIEWS. 


rights belonging to free States, and wa^ not incompatible with the enjoyment of 
all the rights and immunities, which an admission into the Union was supposed 
to confer. 

It will be recollected that Congress, by a Resolve of the 10th of October, 
1780, declared that the unappropriated lands that might be ceded to the United 
States, pursuant to a previous recommendation of Congress, should be disposed 
of for the common benefit of the United States, and be settled and formed into 
distinct republican States, which should become members of the federal Union 
and have the same rights of sovereignty, freedom and independence, as the 
other States. This language is exceedingly strong, and guarantees to the New 
States the same rights of sovereignty as the Old States possessed. It was 
undoubtedly with this Resolve in view, that the Territory northwest of the 
Ohio was ultimately ceded to the United States by the several States claiming 
title to it; viz: by Massachusetts, Connecticut, New York and Virginia. 
New York made a cession on the first of March, 1781, without annexing any 
conditions; Virginia, on the first of March, 1784, upon certain conditions; 
and, among others, a condition embracing the substance of the Resolve of the 
10th October, 1780. Massachusetts made a cession on the 19th of April, 
1785, stating no conditions, but expressly to the uses stated in the Resolve of 
1780. And lastly Connecticut made a cession on the 13th of September, 1786, 
without any condition, but expressly for the common use and benefit of the 
United States. On the 13th of July, 1787, Congress passed an Ordinance for 
the government of the Territory so added, which has ever since continued in 
force, and has formed the basis of the Territorial governments of the United 
States. This Ordinance was passed by the unanimous voice of all the States 
present at its passage; viz: Massachusetts, New York, Pennsylvania, Dela¬ 
ware, Virginia, North Carolina, South Carolina, and Georgia. It contains six 
fundamental articles as a compact between the United States and the inhab¬ 
itants, who might occupy that Territory, which are introduced by a preamble, 
declaring them to be “ for extending the fundamental principles of civil and 
religious liberty, which forms the basis whereon these republics, their laws and 
constitutions, are created; to fix and establish these principles as the basis of 
all laws, constitutions and governments, which forever hereafter shall be 
formed in said Territory; to provide also for the establishment of States and a 
government therein, and for their admission into a share in the federal coun¬ 
cils, on an equal footing with the original States, at as early a period as might 
be consistent with the general interest.” The 6th article declares, that “ there 
shall neither be Slavery nor involuntary servitude in the said Territory, other¬ 
wise than for the punishment of crimes, whereof the party shall become con¬ 
victed.” It is observable, that no objection occurred to this article, on the 
ground that it was incompatible with the equal sovereignty, freedom and inde¬ 
pendence with the original States, to which the New States, to be formed in 
the ceded Territory, were entitled by the Resolve of the 10th of October, 1780, 
and by the express reference to that Resolve, in the conditions of some of the 
cessions. It is observable, also, that by the preamble already recited, to which 
all the States present acceded, and among these were three of the ceding 
States, and a majority of the Slave-holding States, it was expressly admitted, 
that the restrictions of the 6th article would not deprive the New States, upon 
their admission into the federal councils, of their equal footing with the original 
States. This is a high, legislative construction, by independent States, acting 
in their sovereignty capacity, and entitled to the greater weight, because it was 
a subject of common interest; and to all it could not but be deemed a prece¬ 
dent, which would justly influence the subsequent measures of the general 
government. Since the adoption of the Constitution, three New States, form¬ 
ing a part of this Territory, viz : Ohio, Indiana, and Illinois have been admit- 


APPENDIX h\ 


567 


ted into the Union. In the acts enabling them to form State governments, 
and a State Constitution, Congress has, among other very important condi¬ 
tions, made it a fundamental condition, that their constitutions shall contain 
nothing repugnant to the Ordinance of 1787. These conditions were acceded 
to by these States, and have ever been deemed obligatory upon them and in¬ 
violable ; and these States, notwithstanding these conditions, are universally 
considered as admitted into the Union upon the same footing as the original 
States, and as possessing, in respect to the Union the same rights of sove¬ 
reignty, freedom and independence as the other States, in the sense, in which 
those terms are used in the llesolve of 1780. During a period of thirty years, 
not a doubt has been suggested, that the provisions of this ordinance were per¬ 
fectly compatible with the implied and express conditions of the cessions of 
this Territory; and that Congress might justly impose the conditions, which it 
contains, upon all the States formed within its limits. 

In the year 1791, Vermont was admitted into the Union, without any con¬ 
ditions being annexed respecting Slavery. The reason was obvious. It had 
already formed a constitution, which excluded Slavery; and it may be also 
asserted, that, looking to its habits and feelings of its population, and the 
habits and feelings, and constitutional provisions of neighboring States, it was 
morally impossible that Slavery could be adopted in that State. 

Kentucky was admitted into the Union in June, 1792. The State was 
formed from the State of Virginia, and the latter in granting its consent, im¬ 
posed certain conditions, which have since been supposed to form a funda¬ 
mental compact, which neither is at liberty to violate. Congress did not 
impose any restrictions as to Slavery on its admission, and for reasons which 
cannot escape the most careless observer. It would have been manifestly 
unjust, as well as impolitic. 

Tennessee was admitted into the Union in June, 1796. It was ceded by 
North Carolina, more than six years before, as a Territory, upon certain con¬ 
ditions, and among them, that Congress should assume the government of the 
Territory, and govern it according to the Ordinance of 1787; with a proviso, 
however, “ that no regulation made or to be made by Congress shall tend to 
emancipate Slaves.” In good faith, therefore. Congress could not justly insist 
upon a prohibition of Slavery upon its admission into the Union. 

Mississippi was admitted into the Union in December, 1817, upon condi¬ 
tions that its constitution should contain nothing repugnant to the Ordinance 
of 1787, so far as the same had been extended to the Territory by the agree¬ 
ment of cession made between the United States and Georgia ; and Alabama 
was authorized to become a State by the act of 2nd of March, 1819, upon a 
similar condition. Both of these States were ceded as one Territory to the 
United States by Georgia, in April, 1802, upon condition, among other things, 
that it should be admitted into the Union in the same manner as the Territory 
northwest of the Ohio might be under the Ordinance of 1787, which Ordi¬ 
nance (it is declared) shall extend to the Territory contained, in the present 
act of cession, that article only excepted, which forbids Slavery. The prohibi¬ 
tion of Slavery could not, therefore, without the grossest breach ot faith, be 
applied to this Territory. And the very circumstances of this exception in 
this cession of Georgia, as well as in that of North Carolina, shows strong y 
the sense of those States that, without such an exception, Congress would 

possess the authority in question. . , 

The memorialists, after this general survey, would respectfully ask the atten¬ 
tion of Congress to the state of the question of the right of Congress to pro¬ 
hibit Slavery in that part of the former Territory of Louisiana, which now 
forms the Missouri Territory. Louisiana was purchased of France by the 
Treaty of the 30th of April, 1803. The third article of that Treaty is as fol- 


568 


WEBSTER’S REAL CONSTITUTIONAL VIEWS. 


lows • “ The inhabitants of the ceded Territory shall be incorporated into the 
Union of the United States, and admitted as soon as possible, according to the 
principles of the federal Constitution , to the enjoyment of all the rights, advan¬ 
tages and immunities of citizens of the United States; and in the meantime 
they shall be maintained and protected in the free enjoyment of their liberty, 
property, and the religion, which they profess. 

Although the language of this article is not very precise or accurate, the 
memorialists conceive that its real import and intent cannot be mistaken. The 
first clause provides for the admission of the ceded Territory into the Union, 
and the succeeding clause shows this must be according to the principles of 
the federal Constitution ; and this very qualification necessarily excludes the 
idea that Congress were not to be at liberty to impose any conditions upon such 
admission, which were consistent with the principles of that Constitution, and 
which had been or might justly be applied to other New States. The language 
is not by any means so pointed as that of the Resolve of 1780, and yet it has 
been seen that that Resolve was never supposed to inhibit the authority of 
Congress, as to the introduction of slavery, and it is clear, upon the plainest 
rules of construction, that in the absence of all restrictive language, a clause, 
merely providing for the admission of a Territory into the Union, must be 
construed to authorize an admission in the manner, and upon the terms, which 
the Constitution itself would justify. This construction derives additional sup¬ 
port from the next clause. The inhabitants “shall be admitted as soon as 
possible, according to the principles of the federal Constitution, to the enjoy¬ 
ment of all the rights , advantages and immunities of citizens of the United 
States” The rights, advantages and immunities here spoken of must, from the 
very force of the terms of the clause, be such as are recognized or communi¬ 
cated by the Constitution of the United States; such as are common to all 
citizens, and are uniform throughout the United States. The clause cannot be 
referred to rights, advantages and immunities, derived exclusively from the 
State governments, for these do not depend upon the federal Constitution. 
Besides, it would be impossible that all the rights, advantages and immunities 
of citizens of the different States could be at the same time enjoyed by the same 
persons. These rights are different in different States; a right exists in one 
State, which is denied in others, or is repugnant to other rights enjoyed in 
others. In some of the States, a freeholder alone is entitled to vote in elec¬ 
tions ; in some, a qualification of personal property is sufficient; and in others 
age, and freedom are the sole qualifications of electors. In some States no 
citizen is permitted to hold Slaves; in others, he possesses that power abso¬ 
lutely ; in others it is limited. The obvious meaning therefore of the clause is, 
that the rights derived under the federal Constitution, shall be enjoyed by the 
inhabitants of Louisiana, in the same manner as by the citizen of other States. 
The United States, by the Constitution, are bound to guarantee to every State 
in the Union a republican form of government; and the inhabitants of Louisiana 
are entitled, when a State, to this guarantee. Each State has a right to two 
senators, and to representatives according to a certain enumeration of popula¬ 
tion pointed out in the Constitution. The inhabitants of Louisiana, upon their 
admission into the Union, are also entitled to these privileges. The Constitu¬ 
tion further declares, “that the citizens of each State shall be entitled to 
all privileges and immunities of citizens in the several States.” It would 
seem as if the meaning of this clause could not be misinterpreted. It obviously 
applies to the case of the removal of a citizen of one State to another State; 
and in such a case it secures to the migrating citizen all the privileges and 
immunities of citizens in the State to which he removes. It cannot surely be 
contended, upon any rational interpretation, that it gives to the citizens of 
each State all the privileges and immunities of the citizens of every other State* 


APPENDIX F. 


569 


at the same time and under all circumstances. Such a construction would lead 
to the most extraordinary consequences. It would at once destroy all the fun¬ 
damental limitations of the State constitutions upon the rights of their own 
citizens; and leave all those rights at the mercy of the citizens of any other 
State, which should adopt different limitations. According to this construction, 
if all the State constitutions, save one, prohibited Slavery, it would be in the 
power of that single State, by the admission of the right of its citizens to hold 
Slaves, to communicate the same right to the citizens of all the other States 
within their own exclusive limits, in defiance of their own constitutional prohibi¬ 
tions ; and to render the absurdity still more apparent, the same construction 
would communicate the most opposite and irreconcilable rights to the citizens 
of different States at the same time. 

It seems therefore to be undeniable, upon any rational interpretation, that 
this clause of the Constitution communicated no rights in any State, which its 
own citizens do not enjoy, and that the citizens of Louisiana, upon their admis¬ 
sion into the Union, in receiving the benefit of this clause, would not enjoy 
higher, or more extensive rights than the citizens of Ohio. It would commu¬ 
nicate to the former no right of holding Slaves, except in States, where the 
citizens already possessed the same right under their own State constitutions 
and laws. 

The Treaty, then, by providing for the inhabitants of Louisiana the enjoy¬ 
ment of all the rights, advantages and immunities of citizens of the United 
States, seems distinctly to have pointed to those derived from the federal Con¬ 
stitution, and not to those, which, being derived from other sources, were 
enjoyed by some and denied to others of the citizens of the United States. 

The remaining clause of the Treaty, “ that in the meantime ” the inhabitants 
“ shall be maintained and protected in the free enjoyment of their liberty, 
property, and the religion, which they profess, ” requires no examination. It 
manifestly applies to the period of its Territorial government, and has no refer¬ 
ence to the terms of its admission into the Union, or to the condition of the 
Territory after it becomes a State. But it may be confidently asked whether, 
if the whole Ordinance of 1787, which contains the prohibition of Slavery, 
had been extended to Louisiana, there would have been anything inconsistent 
with the enjoyment of liberty, property or religion? So far as Slaves are 
deemed property, it might be just that the then real owners within the Terri¬ 
tory should be secured in the enjoyment of that property; but the permission 
to acquire such property in future, like every other right of property, ought to 
depend upon sound legislation, and be granted or denied by Congress, as its 
own judgment should" direct. And the memorialists cannot perceive, in the 
clause of the Treaty, any restriction upon the right of Congress to exercise 
the utmost freedom of legislation as to the future introduction of Slaves into 
the ceded territory. . . 

Congress, after this cession, divided the Territory into two Territorial 
governments; and by an act passed on the 2nd of March, 1805, in the exercise 
of its legislative discretion, directed that the Orleans Territory (which has 
since become the State of Louisiana), should be governed by the Ordinance or 
1787, excepting as to the descent and distribution of estates, and the article 
respecting Slavery. By a subsequent act of the 11th of April, 1811, author¬ 
izing the Inhabitants of this Territory to become a State, Congress annexed 
several highly important conditions, to the exercise of this high act of sove¬ 
reignty. Among other conditions it required that the River Mississippi, and 
the waters thereof, should be highways, and remain forever free to all the inha¬ 
bitants of the United States and its territories, without any tax, toll or impost 
laid by the State therefor ; that the constitution should contain the fundamental 
principles of civil and religious liberty, and should allow the trial by jury in 


570 


WEBSTER’S REAL CONSTITUTIONAL VIEWS. 


criminal cases, and the privilege of the writ of habeas corpus; that all the laws, 
records and judicial proceedings of the State, judicial and legislative, should be • 
in the language, in which the laws of the United States are written; that the 
people should disclaim all rights to the unappropriated Territory, within the 
limits of the State, and that the same should be at the disposal of the United 
'States; that the lands sold by the United States should be exempt from 
taxation for five years from the sale; and that lands of non-residents should 
not be taxed higher than those of residents. These conditions are certainly 
very striking limitations of sovereignty, and embrace most of the fundamental 
regulations of the Ordinance of 1787, excepting the article touching Slavery. 

It is not known to the memorialists that any doubt of their constitutionality, or 
of their perfect harmony with the treaty of 1803, was ever entertained, either 
in Congress or in Louisiana; and yet they contained some principles as repug¬ 
nant. to the original jurisprudence of the Territory at the time of its cession, as 
could well be devised; and if Congress could then impose such conditions, 
what reason is there to say, that it may not impose such conditions on the Mis¬ 
souri Territory ? and if such conditions, why not any others, which its wisdom, 
its justice or its policy may dictate ? 

Upon the whole, the memorialists would most respectfully submit, that the 
terms of the Constitution, as well as the practice of the governments under it, 
must, as they humbly conceive, enfirely justify the conclusion, that Congress 
may prohibit the further introduction of Slavery into its own Territories, 
and also make such prohibitions a condition of the admission of any New 
State into the Union. - 

If the Constitutional power of Congress to make the proposed prohibition be 
satisfactorily shown, the justice and policy of such prohibition seem to the * 
undersigned to be supported by plain and strong reasons.. The permission of 
Slavery in a New State necessarily draws after it an extension of that inequality 
of representation, which already exists in regard to the original States. It 
cannot be expected, that those of the original States, which do not hold Slaves, 
can look on such an extension as being politically just. As between the 
original States, the representation rests on compact and plighted 
faith, and your memorialists have no wish, that that compact should 
be disturbed, or that plighted faith in the slightest degree violated. 
But the subject assumes an entirely different character, when a 
New State proposes to be admitted. With her there is no com¬ 
pact, and no faith plighted; and where is the reason, that she should 
come into the Union with more than an equal share of political im¬ 
portance and political power? Already the ratio of representation, 
established by the Constitution, has given to the States holding Slaves twenty 
members in the House of Representatives more than they would have been 
entitled to, except under the particular provision of the Constitution. In all 
probability this number will be doubled in thirty years. Under these circum¬ 
stances, we deem it not an unreasonable expectation, that the inhabitants of 
Missouri should propose to come into the Union, renouncing the right in ques¬ 
tion, and establishing a constitution, prohibiting it for ever. Without dwelling 
upon this topic, we have still thought it our duty to present it to the consider¬ 
ation of Congress. We present it with a deep and earnest feeling of its import¬ 
ance, and we respectfully solicit for it the full consideration of the National 
Legislature. 

Your memorialists were not without the hope, that the time had at length 
arrived, when the inconvenience and the danger of this description of popula¬ 
tion had become apparent, in all parts of this country, and in all parts of the 
civilized world. It might have been hoped that the New States themselves 
would have had such a view of their own permanent interests and prosperity. 





APPENDIX F. 


571 


as would have led them to prohibit its extension and increase. The wonderful 
increase and prosperity of the States north of the Ohio is unquestionably to be 
ascribed in a great measure to the consequences of the Ordinance of 1787 ; and 
tew, indeed, are the occasions, in the history of nations, in which so much can 
a sm ? le f° r the benefit of future generations, as was done by 
tins Ordinance ol 1787; and as may now be done by the Congress of the 
United States. We appeal to the justice and the wisdom of the National 
Councils to prevent the further progress of a great and serious evil: We appeal 
to those who look forward to the remote consequences of their measures, and 
who cannot balance a temporary or trilling convenience, if there were such, 
against a permanent, growing, and desolating evil. 

We cannot forbear to remind the two Houses of Congress, that the early and 
+i? C1 c!i Ve r ^ as l lres adopted by the American Government for the abolition of 
the Slave Trade are among the proudest memorials of our nation’s glory. That 
Slavery was ever tolerated in the Republic is, as yet, to be attributed to the 
policy of another government. No imputation thus far, rests on any 
portion of the American Confederacy. The Missouri Territory is a new 
country. It its extensive and lertile fields shall be opened as a market for 
Slaves, the Government will seem to become a party to a traffic which, in so 
many acts, through so many years, it has denounced as unpolitic, unchristian, 
inhuman. To enact Laws to punish the traffic, and at the same time to tempt 
cupidity and avarice by the allurements of an insatiable market, is inconsistent 
and irreconcilable. Government by such a course, would only defeat its pur¬ 
poses, and render nugatory its ow r n measures. Nor can the laws derive support 
from the manners of the people if the power of moral sentiment be weakened, 
by enjoying, under the permission of Government, great facilities to com¬ 
mit offences. The laws of the United States have denounced heavv penalties 
against the traffic of Slaves, because such traffic is deemed unjust ancT inhuman. 
We appeal to the spirit of these laws: We appeal to justice and humanity: 
We ask whether they ought not to operate, on the present occasion, with all 
their force ? We have a strong feeling of the injustice of any toleration of 
Slavery. Circumstances have entailed it on a portion of our community, which 
cannot be immediately relieved from it, without consequences more injurious 
than the suffering of the evil. But to permit it in a new country, where yet 
no habits are formed which render it indispensable, what is it, but to encourage 
that rapacity, and fraud and .violence, against which we have so long pointed 
the denunciations of our penal code P What is it, but to tarnish the proud fame 
of the country? What is it, but to throw suspicion on its good faith, and to 
render questionable all its professions of regard for the rights of humanity and 
the liberties of mankind ? As inhabitants of a free country; as citizens of a 
great and rising Republic ; as members of a Christian community; as living in 
a liberal and enlightened age, and as feeling ourselves called upon by the 
dictates of religion and humanity; we have presumed to offer our sentiments 
to Congress on this question, with a solicitude for the event, far beyond what 
a common occasion could inspire. 


appendix g. 


EXTRACTS FROM “THE LOST PRINCIPLE,” BY “BARBA- 
ROSSA,” PUBLISHED AT RICHMOND IN 1860. 

THE SECTIONAL EQUILIBRIUM.-HOW IT WAS CREATED. 

In the constitutional convention of 1829, Watkins Leigh said: “ The fed¬ 
eral convention of 1787 had, for the first time, to arrange a representation of the 
people in congress. What was the origin of the federal number I do not certainly 
know. I have had recourse, in vain, to every source of information accessible to 
ascertain how that precise portion of slaves — three-fifths — came to be 
adopted, what mode or principle of estimate led to it. Some reason there must 
have been” 

It is my purpose, in the following pages, to solve this question of consti¬ 
tutional history — to ascertain the reason that operated on the convention 
which constructed the government under which we live, to adopt in the popu¬ 
lar basis the fractional representation which was awarded to the servile popu¬ 
lation of the South. The report of “ The Debates of the Convention of 1787,” 
by Mr. Madison, enables me to do this. It is the only source from which that 
information can be derived, for the fragment of those proceedings preserved by 
Judge Yates, affords no clue whatever to the solution of this interesting prob¬ 
lem. “ The Debates,” in 1829, were not published, but slept in manuscript, 
at Montpelier, until the death of Mr. Madison broke the seal. 

This part of the organic law has excited but little curiosity, and yet it is 
the ground-work of the political edifice, with reference to which every other 
part was made. A just understanding of this part of the constitution will 
furnish, if I mistake not, an explanation of many of those questions that have 
convulsed the North and South, and will supply us with the means of ascer¬ 
taining how far we have departed from the true meaning of that instrument— 
how far the ship of State has drifted from the intended course. 

Mr. Madison was himself a member of the convention of 1829, and heard 
the enquiry of Mr. Leigh, but said nothing. 

The constitution of the united states is generally understood to be a com¬ 
pact to which the several states are parties; and hence, that all the rights 
which it provides are state rights, and the remedies for the violation of those 
rights, state remedies. In consequence of this view of the constitution, state 
secession and state interposition have been suggested as the modes of redress 
in the several cases to which they apply. But I shall attempt to prove, by 
authentic evidence, that this is not true in the exclusive sense in which it has 
been stated. 

The constitution is, indeed, a compact between states, but it is also a 
compact between slaveholding and non-slaveholding sections; and those sec- 


\ 



APPENDIX G. 


573 


tions are susceptible of obligations and injuries. This is not the least interest- 
mg light in which the constitution presents itself, and thus viewed is a great 
treaty between two nations of opposite civilizations, and, in many respects, op¬ 
posite interests, making the federal system even more complex than it has been 
generally supposed to be. 

The true character of the constitution, and the government which has grown 
out of it, is illustrated by the political parties which have arisen under it. At 
first, a consolidating tendency threatened to absorb the states. This produced 
the state rights party — a school founded by Jefferson and Madison, and after¬ 
wards sustained by a succession of great men, of whom Calhoun was the most 
illustrious. Calhoun devoted the energies of his wonderful intellect to devel¬ 
oping this theory of the constitution. Perceiving that the congressional or 
departmental checks were of a subordinate character, and did not operate to 
restrain the ruling power of the constitution, he attempted to eliminate from 
the government a veto power in the hands of the states, which he denominated 
an equilibrium, but so denominated for no better reason, as I conceive, than 
that its originator would have employed it as an imperfect substitute for that 
wise and healing principle. 

An equilibrium, properly so-called, enters into the government and is its 
living principle. It is ever present; it assists in the deliberations of the legis¬ 
lature and partakes ol the enactment of laws; it moderates the judicial power, 
and in the execution of the laws tempers the executive. But the states, act¬ 
ing as tribunes, as they have been called from their fancied resemblance to that 
Roman officer, are not present in the legislative chambers to arrest the passage 
of bills, but are to be invoked to unravel that which has been woven, to repeal 
that which has been enacted, to undo that which has been done, and that only 
within the narrow limits of a state jurisdiction, and in case of a deliberate, 
palpable and dangerous exercise of •powers, not granted by the constitution . But 
the equilibrium is confined by no bounds to its discretion, nor even to cases 
where the constitution is supposed to be infracted, but decides upon the equity 
and policy as well as the constitutionality of political action, and is omnipotent 
to repress corruptions and prevent extravagant expenditures of public money. 

The nature of the constitution is imprinted on its face, and bears unmistak¬ 
able traces of its two-fold origin. The states, in their sovereign capacity, are 
represented in the senate; for, wherever sovereignty exists, equality necessarily 
prevails. But the sections are represented, and their existence acknowledged 
in the Electoral College, and in the constitution of the first branch of congress. 
It will be seen, hereafter, that the senate was constituted on its present basis 
by a conflict between the great and small states, and that the basis upon which 
the other branch of congress was founded was the result of a collision between 
the North and South, and that the differences, in both cases, were adjusted 
upon the principle of equality. 

The difference between a simple compact among the states, and one to which 
sections and states are equally parties, in respect to the range of powers with 
which it was thought expedient to invest government, is illustrated by the 
articles of confederation and that constitution under which we live. 

In remarking upon that part of the constitution which contains the provi¬ 
sion for a slave representation, a recent intelligent writer says: “ This was the 
first step, and the next was the formation of the present constitution, when a 
contest arose as to the ratio of representation. Should the South have as 
many representatives, in proportion to her population, as the North 1 It was 
just and right that she should. The federal government had no concern with 
the relations between blacks and whites, the different classes of her population. 
It had not the right to inquire whether the negro was a slave or free. The 
slaves were a better population than the free negroes, and if the latter were to 


574 


EXTRACT FROM “THE LOST PRINCIPLE.” 


be counted at their full number in the apportionment of representation, so 
ought the former. The right could not be refused, because the slaves were 
naturally or legally unequal to the whites; for so are the free negroes. It 
could not be refused, because they have no political rights; for neither have 
the free negroes, paupers, women and children. They are an essential part of 
the population; if absent, their places must be filled by other laborers, and if 
they are property as well as population, it is an additional reason for giving 
their owners the security of full representation for them. But the South, as 
usual, yielded to Northern exorbitance, and agreed that five slaves should 
count only as three free negroes. Therefore, instead of 105 representatives in 
congress, we have only 91.” 

If, indeed, the constitution is to be regarded in the light of a compact be¬ 
tween two nations, it is impossible to say that it was just and right that the 
South should have a full representation of her slaves, without first ascertain¬ 
ing what effect that would have upon the distribution of the powers of govern¬ 
ment between the parties. If the effect of a full representation of slaves would 
place the government under the dominion of the South, the slave power, who 
can say that there is any principle of natural justice that would have required 
the North to agree to any such stipulation? If their total or partial exclusion 
would have produced the contrary effect, and placed the South under the con¬ 
trol of the free-soil power, as little could be said in defence of such an arrange¬ 
ment. Each party was entitled to a saie representation in the government, 
which could result alone from introducing the principle of equality in the divi¬ 
sion of power; for in nature, as it is in the court of chancery, equality is eq¬ 
uity. The idea that the partial exclusion of slaves from the representative 
basis was due to their moral and legal inferiority is wholly unfounded, as will 
hereafter be proved, although that doctrine is inculcated by the respectable au¬ 
thority of the federalist. The Southern delegates in the federal convention 
will likewise, in the progress of this narrative, be vindicated from the insin¬ 
uated charge of having submitted to Northern exorbitance; but the integrity of 
their motives will be vindicated at the expense of their political sagacity. 

The sectional line between the North and the South was almost as deeply 
drawn in 1787, as it is at the present time. This will be clearly exhibited By 
an inspection of that part of the debates of the convention now about to pass 
under review. < It contradicts the notion entertained by some, that this sec¬ 
tional antagonism is of recent growth and consequently that the constitution 
of the united states was not made with reference to it. The states to the 
northward of Virginia and Maryland were either already free states or were 
preparing to become so, and it was apparent to every one that they would soon 
consummate their intention. The Northern delegates in the convention of 
1787, all acted in the free-soil interest, and the delegates from the South were 
unanimous in the defence of the interest of slavery. To reconcile that differ¬ 
ence constituted the chief labor of the convention. The year following, in the 
South Carolina convention of ratification, Gen. Pinckney said: — 

“ But striking as this difference is, it is not be compared to the difference 
that there is between the inhabitants of the Northern and Southern states; when 
I say Southern, I mean Maryland, and the states southward of her. There 
we may truly observe that nature has drawn as strong marks of distinction in 
the habits and manners of the people, as she has in her climates and produc¬ 
tions. The Southern citizen beholds with a kind of surprise the simple man¬ 
ners of the East, and is too often induced to entertain undeserved opinions of 
the purity of the Quaker, while they, in their turn, seem concerned at what 
they term the extravagance and dissipation of their Southern friends, and re¬ 
probate , as an unpardonable moral and political evil , the dominion they hold over 
a part of the human race” Elliot’s Debates, vol. iv. p. 310. 


APPENDIX G. 


575 


Tins feeling, which existed to so great a degree among the people in the two 
sections, was ever showing itself in congress whenever the interests or power 
of either was involved. The Northern members objected to the admission of 
Kentucky into the union, the Southern states objected to the admission of Ver¬ 
mont. That fraternal love which many have supposed to have existed at that 
period between the North and South, is purely imaginary; instead, a strong 
and deep-rooted antagonism characterized them" both. Already had any affilia¬ 
tion between a Northern member of congress and the Southern members been 
F< l mi UnC * er *^ ie " an . °/ the North. General Sullivan thus writes to Washington : 
“ The choice of minister of war was postponed to the first of October. This 
was a manoeuvre of Samuel Adams and others from the North, fearing that, as I 
was in nomination, the choice would fall on me, who having apostatized from the 
true New England faith, by sometimes voting with the Southern states, am not 
eligible. ... 

On Wednesday, the 27th June,'“Mr. Rutledge moved to postpone the 
sixth resolution defining the powers of congress, in order to take up the 
seventh and eighth, which involved the most fundamental points, the rules of 
suffrage in the two branches. Agreed to nem. con .” The seventh and eighth 
resolutions of the report, were in the words following: — 

“7. Resolved, That the right of suffrage in the first branch of the national 
legislature, ought not to be according to the rule established in the articles of 
confederation, but according to some equitable ratio of representation, namely, 
in proportion to the whole number of white and other free citizens and inhabi¬ 
tants, of every sex, age, and condition, including those bound to servitude for 
a term of years, and three-fifths of all other persons not comprehended in the 
foregoing description, except Indians not paying taxes in each state. 

“8. Resolved, That the right of suffrage in the second branch of the na¬ 
tional legislature, ought to be according to the rule established for the first.” 

It will be remarked, that the whole question, wliich was ultimately divided 
into two branches, was, by these resolutions, presented in one point of view. 
The debate which ensued was extremely interesting, and shows, even in the 
condensed and imperfect account of it which has reached us, the difficulties 
which the convention encountered. The proposed settlement was first assailed 
by the small states; and one of the expedients proposed by that interest for 
the settlement of the dispute exhibits, in striking colors, the deep-seated ap¬ 
prehension, unfounded as it was then pronounced, and» has since turned out to 
be, of an absorption of the lesser by the greater states. It was proposed by 
the delegates from New Jersey and Delaware to confound all state lines and 
throw them into one mass, or into hotchpot, as the lawyers of the convention 
called it, and then re-partition the territory into equal parts among the states. 
But fhe old difficulty would still have existed. Some of those equal allot¬ 
ments would have been greatly superior to others in wealth and population, 
which would have caused, to borrow a passage from Burke respecting a sim¬ 
ilar plan in the French constitution of 1789, “such infinite variations between 
square and square, as to render mensuration a ridiculous standard of power in 
the commonwealth, and equality in geometry the most unequal of all measures 
in the distribution of men.” New Jersey and Delaware demanded such a con¬ 
solidation and re-distribution of territory, or an equality of representation for 
the states in every department of government. But the more moderate were 
content with an equal vote in the senatorial department, which they insisted as 
a negative “to save them from being destroyed.” Self-protection was their 
avowed object. It was in this connection, and in reply to Mr. Ellsworth of 
Connecticut, that Mr. Madison delivered a speech, from which the following 
extract is made. It bears directly on the object of this publication, and states, 
in the most explicit language, the purpose and meaning of the fractional repre- 



576 EXTRACT FROM “THE LOST PRINCIPLE.” 


sentation awarded to the South in both the legislative departments by the 
seventh and eighth resolutions then under discussion. It is to the ratio which 
they contained that Mr. Madison alludes : — 

“ He admitted that every peculiar interest, whether in any class of citizens, 
or any description of states, ought to be secured as far as possible. Wherever 
there* is danger of attack, there ought to be given a constitutional power of 
defence. But he contended that the states were divided into different inter¬ 
ests, not by their difference of size, but by other circumstances ; the most ma¬ 
terial of which resulted partly from climate, but principally from the* effects of 
their having, or not having slaves. These two causes concurred in forming 
the great division of interests in the united states. It did not lie between the 
large and small states. It lay between the Northern and Southern; and if any 
defensive power were necessary, it ought to be mutually given to these two inter¬ 
ests. He was so strongly impressed with this important truth, that he had been 
casting about in his mind for sorqe expedient that would answer the purpose. 
The one which had occurred, was, that instead of proportioning the votes of 
the states in both branches, to their respective number of inhabitants, comput¬ 
ing the slaves in the ratio of five to three, they should be represented in one 
branch according to the number of free inhabitants only; and in the other 
according to the whole number, counting the slaves as free. By this arrange¬ 
ment, the Southern scale would have the advantage in one house, and the 
Northern in the other. lie had been restrained from proposing this expe¬ 
dient by two considerations; one was his unwillingness to urge any diversity of 
interests on an occasion where it is but too apt to arise of itself; the other 
was the inequality of powers that must be vested in the two branches, and 
which would destroy the equilibrium of interests.” 

This speech, so admirable for its correct appreciation of the true principles of 
representative government, opens the discussion, so far as the debates show, 
upon the subject of slavery. It exhibits the principles by which the speaker as 
a constitution maker was guided, and especially sets forth the principles upon 
which he had, as a Southern delegate, insisted. There could not be produced 
more undeniable evidence — evidence amounting to the clearest proof—that 
the ratio of three-fifths, as it stood in the report of the committee of the whole, 
then under the consideration of the convention, was looked upon as designed 
to produce an equilibrium between the two sections. This is fortified, and if 
any doubt remained, woflld be rendered certain, by the narrative of the intro¬ 
duction of that compromise therefore given. This is but the contemporaneous 
exposition of the purpose of the proposed basis, by a single member of the con¬ 
vention, but, let it be borne in mind, a member speaking for the whole South, 
and speaking to the whole North. I will proceed to collect all the passages 
from the succeeding debate, which concern this point, in order to prove that it 
was universally looked upon in the same light in which it w T as viewed by Mr. 
Madison. By this means, the purpose which that body had in view, in estab- 
ishing that fractional basis, that mode of distributing power between jealous 
and at length irritated sections, will be established — established, it is believed, 
to the satisfaction of every sound understanding. [He then proceeds to give 
extracts from the ensuing debate, which tend to sustain his theory. But the 
only object here is to quote enough to show “ Barbarossa’s ” theory. He 
hardly succeeds in showing a tangible written compact in the sense that the 
constitution is such.] 



APPENDIX H. 


REVIEW OF A. H. STEPHENS’ AND J. A. JAMESON’S 
WORKS ON THE CONSTITUTION. 

[From the Round Table of October 10, 1868.] 

1. A Constitutional view of the late war between the States ; its causes, character> 

conduct, and results. Presented in a series of colloquies at Liberty Hall. 
By Alexander H. Stephens. Philadelphia: National Publishing Co., 
1868. 

2. The Constitutional Convention ; its history, powers, and modes of proceeding. 

By John Alexander Jameson, Judge, etc., and Professor of constitutional 
law, etc., in the Chicago University. New York : Charles Scribner & Co.* 
1867. 

The architects who builded the real and only temples of American liberty — 
the states: and those who afterwards combined them, for increased security, 
into the structure of surpassing grandeur, beauty, and excellence, called “ the 
united states;” essayed to avoid the old-world despotic theory of Divine 
right, which really signified army-supported polities, ana to build entirely upon 
the idea of man’s capacity for self-government. All questions were to be 
settled without force, by reason, on principles of justice; and all political 
authority except derivative and delegated, was to be kept out of the govern¬ 
mental contrivances to be made, and left forever in the people — this 
being popular sovereignty, or the right of self-government. Under Providence, 
our people naturally grew into organized republics, and ruled themselves by 
the only true Divine right of government; for, being created free moral agents, 
they must have free choice in all personal, social, and political affairs, in 
order to make it just that God should hold them responsible for their pro¬ 
bationary acts. 

And as the people could not attend personally to political government in 
large commonwealths, much less throughout a “ republic of republics,” the plan 
had to be adopted, of appointing certain persons to do this part of “ the people’s 
business,” and of putting their commission to act, in carefully written form, so 
as to empower, direct, and, at the same time, control them — the absolute right 
of such empowering (and necessarily of withdrawing power) always remaining 
in the people, as their sovereignty, or right of self-government, and being 
inalienable. The writing in question is their frame of government, or constitu¬ 
tion, and is the most important and sacred of public things — the very pal¬ 
ladium of law, order, and all private rights and blessings. It is the only 
procuration or warrant of the public functionary. Within it, he is justifiable in 
his doings; while in acting outside of it, he becomes a malefactor, nay more, an 
outlaw, for he has neither its authorization nor its protection. Moreover, to 

37 



578 


REVIEW OF STEPHENS AND JAMESON. 


secure the sacred observance of this vital rescript, and to prevent usurpation, 
the people provided for the exaction of an oath from such servants and trustees. 
That oath being to support the constitution; to obey its commands; to observe 
all its reservations; and to keep themselves under it, and consequently subor¬ 
dinate to its makers; the functionaries must commit perjury and treason if they 
“ act, in this business, outside of the Constitution ! ” 

This is our written system. The same general principles apply to both 
the state and the federal constitutions. The people were above them. They 
must remain so, unless a revolution has occurred, which has made them 
subjects. 

What people ? How organized ? And how capacitated politically to act ? 
These questions must be answered from contemporaneous authorities, as ques¬ 
tions of fact. What did the founders say upon these points ? and induce the 



Mr. Stephens’ book well and truly presents the true theory of our “ republic 
of republics; ” but, with an exception to be mentioned, its evidences and argu¬ 
ments are generally those of the great intellects who have shone in our partisan 
politics and statesmanship; and thus a noble and true theory is narrowed and 
degraded to a matter of party doctrine, and made to suffer all the odium and 
antagonism that befall the Democratic party, whereas the setting forth of the 
original formation of the states: their character ; their acts in federating: and 
the contemporaneous expositions of all these things by the fathers; would 
have placed the discussion above a partisan grade and atmosphere; would 
have been more worthy of a leading pen; and would have been much more 
likely to bring our people from wandering in the “wilderness of sin,” to 
the promised land — the political and liberty-preserving system of their 
fathers. 

However, it is a valuable labor to group even these authorities upon the 
points of the book; and it is a highly creditable compilation, skilfully arranged, 
so as to make a cogent, and, indeed, a conclusive argument, to sustain the 
federal theory of the Constitution. 

No criticism upon the style, plan, or purpose, need be made, further than to 
say that the English is good, and the diction respectable — the graces being 
few; the plan has the shape, without the ease, grace, sparkle, wit, humor, or 
point of good colloquy; and the purpose is to show, by facts, authorities and 
arguments, that our political system is a federation of sovereign States. 

The peculiar advantage of the colloquial mode to the author is, that he fights 
ideal foes whose strength being within that of their creator, cannot prevent his 
predetermined victory. In the cause of truth, however, it is better to grapple 
with the real deceivers and misleaders, who stand thickly around, vulnerable at 
every point. Vanquishing the foes of conservatism and peace, in presence of 
the governing people of our country, does practical and instant good; while 
battling with prototypes and old dogmas, and trusting to the voters’ seeing 
points, and tracing analogies, postpones indefinitely the victory, to which the 
author’s righteous cause and superior powers entitle him, and which would be 
a public blessing! Mr. Stephens’ fine faculties should be exerted on the ros¬ 
trum, and in Congress, against the Shermans, Sumners, Binghams, Butlers, 
Greeleys, and suchlike breathing evils, rather than the ideal Heisters, Bynums, 
and Nortons, or even the defunct Storys and Websters. 

If it was well to go back to the “ Expounders,” it was better to keep on to 
the Constitutional era, where the very dogmas of the said “expounders” appear 
in the shape of charges against the Constitution, made by its enemies, to defeat 
it. This would have enabled the author, upon every point and argument of 
his book, to reproduce Hamilton, Madison, Wilson, Dickinson, Washington, 


APPENDIX H. 


579 


and others, with far greater effect than results from repeating Calhoun, Bibb 
Den Jackson s writers, senate resolutions, and Democratic platforms. And in 
truth, as expositors of our system, these are at best but excellent copies’ of 
Madison, Jefferson, Tucker, and Taylor of Caroline; and even the latter merely 
repeated what had been said at the time and act of forming the Constitution, by 
its founders . Therefore we regret that the stones of Mr. Stephens’ mosaic- 
work were mainly quarried from the mine of partisan politics, instead of con¬ 
stitutional history. 

However the calm, candid, and truthful tone of the work is admirable — the 
spirit ot the constitutional era running through all its pages. And it is to be 
regretted that the superabundant proofs which that era affords, are so sparingly 
used, when they would have added to the conclusions of the work 


“ Confirmation strong 
As proofs of Holy writ.” 

One of Mr. Stephens’ collocutors opens the discussion, by speaking of that 
gentleman s apparent inconsistency, in supporting secession, after making his 
great Union speech of November 14, I860; whereupon Mr. S. proceeds at 
length, and most satisfactorily, to explain that our polity was a union of states, of 
which Georgia was an equal member; that our political system is merely the 
government of republican states by themselves—the governmental contrivances 
being their creations, administered by their citizens, and only possessing and 
exercising their power; that he advised Georgia to acquiesce in Lincoln’s elec¬ 
tion ; that she did not do so, but withdrew from the association of states she, 
as to herself, had formed; that in all this she simplj exercised her sovereignty, 
and demanded of him her due obedience and devotion. He has no difficulty in 
vindicating his consistency. 

He clearly sets forth the history of the Union; the action taken by all the 
States to form the first federation, wliich he analyzes; the defects of the sys¬ 
tem, and the consequent general desire for a change; the Annapolis Conven¬ 
tion of 1786 ; the Philadelphia Convention and the credentials of the delegates 
from their States ; the action of the Convention; the constitution they proposed, 
with an excellent analysis thereof; maintaining throughout and establishing 
irrefutably the proposition that the Constitution is a compact of federation 
between sovereign States. 

He introduces a decisive mode of proof, which seems not to have been much 
appreciated till an English publication entitled “ Davis and Leef in 1864 or 
5, (republished here) put it prominently forward, viz : The history of the con¬ 
ventions, debates and ratifications of the several States — thus exhibiting pre¬ 
cisely what gave the federal constitution its existence and validity, and the 
federal functionaries their sole warrant of jurisdiction within a given state. He 
then quotes and comments on Calhoun, Bibb, Jackson, Webster, the dicta 
of the Supreme Court of the United States, the Senate resolutions of 1838 and 
1860, etc., — all supporting state sovereignty; and criticises Story and Motley, 
as well as Webster’s efforts, that oppose that theory. And after quoting Jef¬ 
ferson, Hamilton, Tucker, Rawle, John Q. Adams, Lincoln, Greeley, and the 
Hartford convention on secession, he concludes with a powerful chapter on the 
strength of confederations and the working of our system. 

Altogether we consider this work very valuable, from its calm, judicial spirit, 
and from its strong and logical presentation of overwhelming proofs, on the 
most important of all political questions. Its appearance is timely, for public 
attention is more than ever directed to the questions discussed. It is, however, 
like the most of judicial opinions, founded entirely upon precedents; and much 
disappointment will be felt, that so superior and fertile a mind, should have 


580 


REVIEW OF STEPHENS AND JAMESON. 


produced a work with so little originality, profound thought, careful analysis, 
and philosophical reasoning. As a commentary it is far below Upshur and 
Calhoun; as a criticism on Story and Webster, it does not approach Bledsoe ; 
and in its most valuable argument, it has been anticipated by the English work 
before mentioned. In short, a student of constitutional science will find little 
that he has not seen before. 

All things considered, however, the book is a worthy addition to our political 
literature. While it gathers, and puts in available and useful form, a multitude 
of scattered fragments of statesmanship and political philosophy, it comments 
upon them, and the errors it opposes, with a most commendable temper, candor, 
truthfulness and logical force. Every citizen can read it with profit, and every 
library should contain it. 

The other work, mentioned in the heading, is written by a professor of con¬ 
stitutional law, who seems not to be a professor of constitutional facts ; but as 
a literary performance, and as an effort of original reasoning, it is far superior 
to that of Mr. Stephens; and it exhibits more research, and profundity of 
thought. It is however replete with inexcusable and pernicious errors. Like 
Story and Webster, the author comes to his work with a cherished theory. 
Assuming his premises, culling such facts of constitutional history as suit him, 
and arguing logically, he finally reaches the conclusions he desires. 

He sets out by dividing conventions into four classes: “I. The sponta¬ 
neous convention, or public meeting. II. The ordinary legislative convention, 
or general assembly. III. The revolutionary convention. IV. The consti¬ 
tutional convention.” The first three classes are sufficiently described for our 
purpose by the appellations: the fourth is the main subject of the work, which 
may be described as the full gospel of consolidation and centralism. The author 
is unable to imagine a voluntary “ Government,” or union, that can be other 
than “ a rope of sand: ” he attributes to “ Government ” that coercive 
power over States, that was expressly denied to it by its makers: he trans¬ 
forms the federal agency into a Briareus, whose hundred or less hands grasp as 
many helpless but sweetly captivated states, which are thus strongly attached 
to the Union: and, to cap the climax, he thinks the constitution of a state, a 
straight jacket, put upon the people thereof, by a superior power (because 
they are crazy, idiotic, or otherwise incapable of self-government — we pre¬ 
sume) which they cannot put off without leave, no matter how dirty, ragged, 
hurtful, or otherwise objectionable it may be. 

That this is a fair presentation of the constitutional law this professor pro¬ 
fesses, is evinced, we think, by the following samples of his theory, as well as 
style. He sets out by defining the word “ state ” as meaning “ 1st, any 
organized political community; ” and 2nd, “ in a limited sense ... a mem¬ 
ber of the American union.” With great parade of definition, and show of 
careful reasoning, lie asks where “sovereignty resides?” and remarks that 
“the difficulty is, in the jumble of national and State organizations, to locate 
it.” He finally “ locates ” it in the nation, and generalizes thus—paraphras¬ 
ing Webster : “The people of the United States, in 1789, threw the exist¬ 
ing constitutions of the several States into hotchpotch, and repartitioned among 
these bodies, the powers they were thenceforth to exercise, giving a portion 
thereof to the States, a portion to the general government, and reserving the 
residue to themselves. And the States have habitually conformed to the edict, 
which thus curtailed, and ascertained their powers.” [p. 29.] “Under the 
constitution of the nation, . . . each State is permitted, by the sovereign, 

to _ frame for its own people, its local constitution.” And, continues he, in 
doing this, “ they perform a delegated function.” [p. 65.] 

Not a fact, or a phantom of a fact, in all American history, supports such 
ideas; but everything disproves them. But it were a mistake to suppose the 


APPENDIX II. 


581 


author’s ideas to be a “jumble; ” or that the contents of his head are hotch- 
potchy. On the contrary, he reasons clearly from consolidation premises, 
though he evinces some creative genius in making them. It must Be noted, 
however, that the constitutional construction of the school to which he belongs, 
means buildingi, rather than construing; and their structure is like the temple of 
Fame in the picture, majestic and “cloud-capped,” but is unsubstantial, unprac¬ 
tical, unhistorical, and unconstitutional. They seem to think it right, or at least 
“smart,” to make the facts of their great political fabric. Why should they 
not? Did not the French at Suez fabricate stone for their piers, jetties, and 
other constructions ? Is it not better and easier to make the fabrications for 
constitutional construction, since neither materials nor manipulation are 
required ? If Professor Jameson and Engineer Lesseps had been coeval with 
the civil engineer of Syracuse, “the great globe itself” might have become 
vagrant, like the lost Pleiad, for they would have said : “ Assume your fulcrum, 
Archimedes; ” and the premises we all occupy, and reason from, would have 
been forced to yield to the assumption. And why should we not, in like man¬ 
ner, be logically evicted from our houses or fai;ms, some professor, engineer, 
or less reputable character, assuming the premises, and saying to us — 
“ Varnos / ” 

But seriously, the professor has merely made a bull. It would be as sensible 
to expect, by throwing thirteen suits of clothes into a rag-bag, to consolidate 
their owners into a giant, equal to all of them, as to expect to make a nation 
by throwing the State constitutions into hotchpotch. The elements of a nation 
must be people, and all our people were States. It was they (and not their 
constitutions — or mere written evidences of their will) that must have been 
put into his vast brick machine (let us call it, as hotchpotch is rather vague) 
ground over, remoulded, and baked anew, in one stupendous “ brick with all the 
corners on.” American history only shows one other high-sourced blunder as 
amusing. Another eminent Illinois gentleman, named Lincoln, said the union 
made the States , and gave them their only status and rights! 

Starting from such premises as the above, the author goes sublimely but 
logically along, through all his 550 large octavo pages, never deigning to look 
at the being, “bomof poor but respectable parents, in 1788 (not 1789), called 
the federal government, together with what Mr. Stephens calls the res gestce — 
probably meaning the things happening at the gestation. He ignores, or gives 
no weight to, the following facts: 1, that the states are named and described 
in the constitution, as New Hampshire, Massachusetts, Connecticut, New 
York, et alii , without the slightest qualification; 2, that they became members 
of the Union without the least imaginable change; 3, that they are called 
States throughout the constitution, not in any limited sense, but in the same 
sense as France, Spain, and Russia are. [Art. III. § 2: Amendments Art. 
XI.]; 4, that each colony was formed and governed by herself till independ¬ 
ence, when she became a complete body politic or state, which, having no 
superior, must have been sovereign; 5, that George III., at the instance of 
the American commissioners who negotiated the treaty of 1783 acknowledged 
each state to be sovereign; 6, that each declared or implied sovereignty to be 
in herself: 7, that all declared and guaranteed that each had sovereignty, and 
every possible power, except what she delegated; 8, that this sovereignty was 
a matter of essential character distinguishing the state from a province or other 
subdivision of a state or nation ; 9, that when the constitution was formed, 
these States were pre-existent, with sovereign characters solemnly established, 
and they could but have acted in such characters; 10, that the federal con¬ 
vention of 1787, unanimously wrote the preamble of the constitution as fol¬ 
lows: “We the people of the States of New Hampshire, Massachusetts, 
Connecticut” etc., “do ordain this constitution” etc., and they never 


582 


REVIEW OF STEPHENS AND JAMESON. 


changed their will; but as it was provided that nine of the States might make 
the federation, and as it could not be foretold which of them might accede to 
it, the Committee on style properly struck out the names, but put in the equiv¬ 
alent expression, now in the preamble; 11, that Article VII. provides “for 
the establishment of this constitution between the States so ratifying the same, 
thus showing that the States, by ratifying , established, and alone became the 
potential parties; 12, that the States have the original and absolute elective 
power, and the exclusive control of the same [Art. I. § 2, 3; II. § 1], and 
that they act severally in electing both houses of congress and the president, 
while these, as their agents, appoint all other officers; 13, that there are no 
citizens in the federation but citizens of States [Art. III. § 2; IV. § 2] each 
federal officer necessarily remaining a citizen of a state, owing allegiance there¬ 
to, and, indeed, being sworn to support his state’s “ supreme law,” which the 
Constitution is; 14, and finally that we have no nation but States — “ united 
States,” the constitution throughout, thus phrasing the political arrangement 
of 1788, or calling it a “ union of States” [Art. I. § 2; IV. §§ 3, 4]. These 
facts destroy without remedy, the fabric of consolidation, built, con amore, and 
with such signal ability, by the professor. If he had been seeking for truth, 
and had come to ruin, which could hardly be, we should sympathize with him; 
but he started with a palpably wrong theory; sought to prove it; and, as 
Carlyle once said, “mashed his face to a pancake against the adamant of 
things: ” and we can neither pity him, nor hope he will have the face to go 
further. A nation is a good thing to have, but he must manage to get along 
with one which absolute sovereigns constitute by .federalizing themselves, and 
governing themselves jointly. The people might have been one state, but for 
the stubborn fact that they were many. And the consolidation of them 
might have been advisable, but our fathers all thought and acted con¬ 
trariwise; and we protest against discarding their wisdom, after experienc¬ 
ing for two or three generations, and up to 1860, that “ its ways are ways 
of pleasantness, and all its paths are peace.” It is sad to Gradgrind to death 
a theory of so much esthetic merit, but it is a matter of absolute history, 
that the raw materials of which alone a nation could be made, viz.: the 
people, the land, and the political power, all belonged to the then existent 
and acting States of New Hampshire, Massachusetts, et alii, which were, 
after their federation, the self-same States, in every fespect, that they were 
before — thus showing that a nation or state comprising them was a political 
impossibility. 

Of the two authors, under review, however, we must concede to this one the 
better understanding of sovereignty, though he makes a bad use of his superior 
knowledge. He sees the nature of it, but errs in regard to its location; while 
Mr. Stephens, who is correct, in the main, as to its location, is evidently some¬ 
what mistaken concerning its nature. Though the tenor of his book, and the 
proofs he marshals, make against it, yet he seems now and then to have a 
vague idea that the States can be partly sovereign and partly subject, for he 
quotes Webster, as “fully admitting that the States are sovereign, except in so 
far as they have delegated specific sovereign powers.” (pp. 398, 403). Hon. 
Geo. H. Pendleton, in a recent speech at Bangor, said: “ It is a union of 
States, sovereign, except in so far as they have delegated,” etc. The N. Y. 
World expresses it, that the States are “ not sovereign, except as to their re¬ 
served rights.” Nearly all our statesmen, imitating Story and Webster, use 
the same expression, forgetting that “ sovereign ” and “ sovereignty ” are su¬ 
perlative in signification; that divisible sovereignty is a solecism, and is not 
known to publicists [see Vattel and Lieber]; that what they call exceptions 
from sovereignty are precisely identical with the poicers absolutely owned by 
sovereignty, and delegated to its agents; and that it is absurd to talk of sove- 



APPENDIX H. 


583 


reignty making an exception out of sovereignty, and thereby forming a sove¬ 
reignty, which, if resisted, can coerce and destroy sovereignty. 

Obviously, the excepted sovereignty must have supremacy and coercive 
power. So we find these gentlemen, and the World, agreeing with Webster, 
in his great speech of 1833, that u so far. State sovereignty is effectually con¬ 
trolled ; ” and with Lincoln, who said — States are counties of the nation, as 
well as with the Philadelphia convention, that the “ Government ” “ has ab¬ 
solute supremacy,” and holds “the States in allegiance.” And, indeed, they 
can all stand with Professor Jameson, who concedes “ that the States are sove¬ 
reign, except in so far as they” are not; and that so far as they are not, 
“ State sovereignty is effectually controlled ! ” 

It is amusing to find the extreme advocates of antagonistic theories occupy¬ 
ing the same ground. Is Grant’s prayer to be answered ? The truth is, our 
State-rights men do not clearly understand their own platform. They forget 
that there is nothing to distinguish our States from the States or nations of 
public law; that the constitution makes no distinction between our States and 
“foreign States,” but recognizes their sameness of character and description—■ 
as we have seen; that the possession of sovereignty (which, in nature, is indi¬ 
visible and absolute), is the only thing that distinguishes a State or nation 
from a province, colony, satrapy, county, municipality, or other subdivision or 
dependence of a State or nation; that if sovereignty is out of our States, they 
are (and ought to be called), united provinces or united counties, instead of 
united States; and, finally, that if they are under a sovereignty that can con¬ 
trol them, they have gone back to where they were, under Britain, for then 
the will of the political body now called a State, was dominated by an outside 
sovereignty; and taxation without representation of any given State is as 
rightful and practicable now as it was then. Are we united provinces or col¬ 
onies again ? One of these advocates ( the World,') happily affords us the re- 
ductio ad absurdum, by saying we have a “ national sovereignty,” and that the 
States have “no sovereignty, except as to their reserved rights.” It also says, 
with Lincoln, that the only rights of the States are reserved in the constitu¬ 
tion, by this “national sovereignty.” Of course this paramount authority can 
judge what thoy are, and decide pro or con as to their continuance. “ Sove- 
reignty ” must be able to do this, and enforce its decree ! This answers to the 
very consolidation our fathers strove to avoid. Having gone thus far, pari 
passu with Mr. Lincoln, The World should have joined him in his climax. “ In 
what, on principle is a State better than a county ? ” 

We conclude with a few remarks on another apparent error of Mr. Stephens. 
He generally treats of the States as possessing undivided sovereignty, but 
seems to concede that it might have Been, though it was not, alienated or 
divided; and, in one place, he distinctly degrades it to a power, or the sum of 
powers, that could be surrendered or reserved. Was not sovereignty, says 
he, “ most clearly retained and reserved to the people of the several states, in 
that mass of residuary rights, . . . which was clearly reserved in the con¬ 
stitution itself ? It is true, it was not so expressly reserved in the constitution 
at first, because it was deemed . . . wholly unnecessary. . . . But to quiet 
the apprehensions of Patrick Henry, Samuel Adams, and the Conventions of a 
majority of the States, this reservation of sovereignty, was soon after put in 
the constitution.” And to prove that this sovereignty was reserved in the 
constitution, to the States, he quotes the amendment, declaring that “the 
powers not delegated ... are reserved to the States.” [p. 489, et seq.] 
Sovereignty, which is thus grossly degraded, can be nothing less than the 
life and soul of the State, in point of importance. It is an essential character¬ 
istic, and is neither the subject nor the result of any acknowledgment, agree¬ 
ment, guaranty or reservation; but when in the war for independence, the 


584 


REVIEW OF STEPHENS AND JAMESON. 


force of the colonies prevailed, sovereignty came to exist in each of them as a 
new-born soul — an adamantine, eternal fact, which the words of George III. or 
the federated States no more produced, than their confession could have pro¬ 
duced Truth or God ! The most of our statesmen seem unable to distinguish 
between “sovereignty” and its “powers.” It is evident that these are no 
part of sovereignty, for all possible “powers” of government may be dele¬ 
gated, and sovereignty remain intact. Sovereignty and ownership are suffi¬ 
ciently analogous for the latter to throw light on the former. One who has 
ownership, has the absolute right of control and disposal—the jus disponendi. 
This includes all the powers required for its exercise. If the owner delegate 
“powers” to manage, improve, repair, rent, lease, mortgage, or sell, his 
ownership remains intact, and the agent neither has, nor exercises it. So with 
sovereignty: it is, so to speak, the ownership of all persons and things subject 
to it, or it is like an owner’s dominion over them; and after delegating a 
thousand “ powers,” (of government, etc.) it is undiminished. England has a 
myriad of agents, with “ powers,” in every part of the globe, while her sove¬ 
reignty is always at home. Sovereignty sent, but did not accompany, the vic¬ 
torious armies of the Crimea. So in our country sovereignty sends “ substi- 
utes and agents ” with “ powers ” to govern, but remains quietly at home. That 
the general “ government ” has only “ powers,” the constitution everywhere 
shows. Is it wrong then to say that sovereignty is the soul of a State P This 
political body was the only fit receptacle for such soul, and the solemn record 
shows that it did enter ana dwell therein. The two were vitally joined. Have 
they been put asunder P If yea, when ? 

Finally, it seems to us to be unquestionable, that our States are absolutely 
sovereign republics; only self-bound in a purely voluntary association, which is 
solely motived by amity and mutual interest; and that the federal contrivance 
is their instrumentality for self-government and self-protection — is their crea¬ 
tion— lives solely with their life, and acts solely with their powers — and must 
ever be subject to their “supreme law,” and, a fortiori to themselves. 


STATE AND NATION. 


REPLY OF “P. CENTZ, BARRISTER,” TO SENATOR EDMUND’S 
REVIEW OF THE “REPUBLIC OF REPUBLICS,” IN THE 
N. A. REVIEW. 


To the Editor of the Philadelphia Press: 

In the October number of the North American Review, this eminent gentle¬ 
man, besides Podsnapping the “ Republic of Republics ” completely away, presents 
the following assertions and views : 

“The American government is that mixed system of National and State 
organizations which found their last and best expression in the Constitution of 
the United States. The vital principle of this system is the balancing of the 
governments, National and State, in such a manner as to hold them forever in 
. equipoise.” [This is quoted and adopted from Hon. D. D. Field.] 

“ The doctrines of the Republic of Republics are wholly unfounded. The 
Confederacy of the Revolution came near being what Mr. Centz conceives the 
United States to be now. The Declaration of Independence, when effectual, 
made each colony a state, perfectly independent of all the others. There was no 
obligation to any kind of union. Sixteen months later, these States, 'as such, 
formed a Confederation which was neither legally nor philosophically a gov¬ 
ernment. ... 

“The Independence of the American States having finally been achieved by 
the peace of 1783, the confederacy of the thirteen Independent and ‘Associated 
Republics ’ continued for four years of peace the experiment of that association. 

“ The centralization feared was not so much that of lodging powers in a 
government of all the States and all the people, as that of power falling into the 
hands of a few—an aristocracy—and so drifting back to a class and kingly gov¬ 
ernment, like that from which the colonies had delivered themselves. . . The 

very fact that the people of all the States were one people with a common inter¬ 
course, with common objects and common necessities and dangers, made it evi¬ 
dent that for common purposes a government of that people should be insti¬ 
tuted. . . . 

“A change of system was resolved upon, and it was a change that was to 
make the situation of the State and of the people different from what it was 
before. The ‘association of republics,’ not less dear to us than to Mr. Centz, re¬ 
mained ; but, if plain language can be trusted, * the people of the United States, 
in order to secure the blessings of liberty, etc., to themselves and their posterity, 
established the Constitution of the United States of America. In it and by it, the 
people, as a whole people, and as one people, granted legislative powers to a 
Congress, created by the Constitution itself. 

“ Here, then, was a government capable in all parts, which purported to be 
established by the people, and which was to make and execute supreme laws- 
Were not these laws to operate on, and be enforced against persons ? . . The 

discussion of such a question at this day would be inexcusable.” He concludes 





the paragraph by saying, the Supreme Court, through Judge Marshall, settled 
“ all there could be of the question.” 

The last paragraph is a specimen of this class of writings. Nobody has ever 
questioned that we have a complete general government; that it was established 
by the people; that the Constitution providing for and controlling it, together 
with the Federal laws and treaties, is supreme, and that the laws of the said gov¬ 
ernment were to operate on an d be enforced against persons. But th e paragraph 
seeems to serve an evasive purpose, and to imply that the government was not 
established by the people as States ; that it is not federal, and that it is not an 
agency of republics or self-governing societies of people—all of which it unques¬ 
tionably is, as it was intended to be. 

Another interesting and amusing exhibition in the above extract, whiph must 
be noticed before passing to refutation, is the jauntiness and skipping gat/ with 
which the Senator passes from States, as sovereigns, to a sovereign nation that 
yokes them, as if he were tripping from one figure to another in a dance. In the 
next few paragraphs it is proposed to compel him to see the infinite importance 
of stopping to give a few facts, to verify the change he asserts. The discovery of 
even one showing it, and how the Nation acted, with disproof of the absolute 
action of the States in the same premises, will immortalize him. Let us now 
proceed to destroy his myth. 


1 —THE CONSTITUTION NAMES THE STATES, 
the thirteen original ones, with their proper names. They and the “new States 
to be admitted into the Union,” are provided for throughout, as parties to, and 
actors under the Constitution; and no change is provided for, or hinted at, in 
name, geography, people, organism or political authority. The States are styled 
“ The United States,” and are characterized as a union of States repeatedly in 
the Constitution, while all the people in the land are provided for as “citizens of 
each State,” and “citizens of different States.” Now, Mr. Edmunds confesses 
that, when the making of this Constitution was begun, these States were abso¬ 
lutely independent-each with its own mind and will. Must they not conform to 
their nature in their action ? Were they not to exercise their minds in establish¬ 
ing and administering government ? What other mind could there be to act? 
Senator E. should show it. That he knew and contemplated the above, results 
from his quoting the preamble so as to make it read as follows : “ The people of 

the United States in order to secure the blessings of libery,” etc.; whereas the 

true quotation is: “ The people of the United States, in order to form a more per¬ 
fect union, etc. -the supplanting of a less perfect, by “ a more perfect union” of 
States, being the very idea Senator Edmunds was interested to conceal. 

2. WE HAVE NOW A UNION OF UNCHANGED STATES. 

Among numerous proofs that no change was made in the States as the g-ov 
erning powers, article 5 provides for States amending by a three-quarter vote- 
unanimity, probably, being too rare for practical working-thus showing 
continued sovereignty in those bodies, over their constitution of government and 
supreme law. Again, article 6 provides that their ooligations “ shall be as valid 
against the United States under this constitution as under the confederation ” 
thus showing the same parties to have made the “ more perfect union ” of States 
we now have. Again, article 5 declares that “ no State without its consent 
shall be deprived of its equal suffrage in the Senate,” thus showing that we act¬ 
ually have the “ suffrage ” and “consent” of independent minds in the constitu¬ 
tion, i, e. , the complete minds of States. Nay, more, the Senator himself has 
found independent minds under the Constitution, thus stultifying himself: “A 



majority of the States,” says he, “ could, undoubtedly, break up the government 
by omitting to appoint electors ... or Senators,” and he might have added 
that they could refuse to district their States and elect representatives. And he 
says: “ This would be precisely equivalent to an act of secession.” He actually 

sees and confesses the existence of State minds that can decisively cover all polit¬ 
ical action. Now is the time for him to show the national mind and action. He 
also undoubtedly sees, and he should confess, the truth of voluntary union and 
voluntary government. How can self-government be otherwise ? 

3.— THE STATES ESTABLISHED THE CONSTITUTION. 

Article VII proves beyond doubt that the States, as powers, “ ordained and 
established” the constitution; “The ratification of the conventions of nine 
States shall be sufficient for the establishment of this constitution between the 
States so [i. e. , by convention] ratifying the same.” It is certain, then, (1) that rati¬ 
fications were to establish. (2) that States by conventions were to ratify : and (3) 
that, therefore, States were to establish. By States, of course, is meant the peo¬ 
ple as societies—they only having mind to act with, as such. Daniel Webster 
said : “ Until the constitution was ratified by nine States it was but a mere pro¬ 
posal the draft of an instrument. . . It was inoperative paper ; . . it had 

no authority ; it spoke no language.” Surely, Webster is good authority against 
Senator Edmunds! 

4. —WHAT DID THE FEDERAL CONGRESS DO? 

“ The United States, in Congress assembled,” did, on September 13, 1788, de¬ 
clare as follows: “ The Constitution . . has been ratified in the manner 

therein declared to be sufficient for the establishment of the same, and such rati¬ 
fications, duly authenticated, have been received by Congress, and are filed in 
the office of the Secretary.” They then, as the agency of the United States, go 
on to provide, that “ the States begin to act under the new form”—to use the 
words of Washington as to political action under our present constitution ! Con¬ 
gress and Washington vs. Senator Edmunds ! Does the Senator reflect that 
these State acts, preserved in the sacred records of the country, are the very 
muniments, and the only muniments, of the constitution’s title to existence? 

5. —WHAT SAID THE CONVENTION OF STATES 

(as Hamilton called it) of 1787? It unanimously, by the pen of Washington, 
wrote that the government aimed at, was to be “ the Federal government of 
these States ;” and that the constitution was considered the “ delegating,” of an 
“ extensive trust.” The convention of 1787 vs. Senator Edmunds! 

6.—THE TESTIMONY OF THE FEDERALIST. 

Hamilton, Jay and Madison, by the pen of the latter, wrote in the Federalist 
(No. 39) that “this assent and ratification is to be given by the people, not as in¬ 
dividuals composing one entire nation, but as composing the distinct and inde¬ 
pendent States. . . . The act, therefore, establishing the constitution, will 
not be a national but a federal act. . . . Each State, in ratifying the consti¬ 

tution, is considered as a sovereign body, independent of all others, and only to 
be bound by its own voluntary act. In this relation, then, the new constitution 
will, if establishad, be a federal and not a National constitution.” The Federa¬ 
list vs. Senator Edmunds / 

7.—WHAT THE FATHERS SAY. 

Part I, Chapter VII, of the Republic of Republics, gives the expressions of 
just one score of the fathers, all to the effect that our Union is a federation of 
sovereign States. For instance, Washington called it “the new confederacy.” 
Hamilton said it is “ an association of States, or a confederacy.” Madison said 






the States of the Union are “ distinct and independent sovereigns. ’ Morris, 
Wilson, Ellsworth, Sherman, Bowdoin, Pendleton, Marshall, Iredell, Ames, Par¬ 
sons and others expressed themselves in a similar manner—all in unqualified con¬ 
tradiction of Senator Edmunds. It could not be otherwise, as the very expres¬ 
sions of the fathers were in denial and refutation of these very assertions of Sen¬ 
ator Edmunds, which were then uttered by the foes of the Constitution for the 
purpose of defeating it. The Fathers vs. Senator Edmunds ! [R. of R, 43, 159.] 
8.—IF MORE EVIDENCE IS WANTED, 

as to whether the book, or Senator Edmunds’ statement, is “ wholly unfounded, ’ 
he will find, in Part II of the book, a conclusive demonstration that no life, no va¬ 
lidity, and no powers whatever, did, or could, get into the constitution other- ; 
wise than by State action ; and that there was, or could be, no exercise of national 
authority in the premises. And, moreover, if he will read Part III, he will 
blush to find that his whole exegesis originated with the original foes of the Con- ( 
stitution; that it is now based solely on falsifications and tricky exposition; and 
that latter-day expounders have, by their additions and blunders, made ridicu¬ 
lous, a theory which the great Webster—considering the place and occasion— 
made sublime l 

9.— MONTESQUIEU’S ASSOCIATION OF REPUBLICS. 

The book the Senator Podsnaps proves overwhelmingly that the great fear 
of the States and the people was not aristocracy or monarchy, as he seems to 
think, but that the effect of the Constitution would be to nationalize or consoli¬ 
date the States; and it was only on being convinced that the States were to be ( 
preserved in their sovereignty, and federalized, that the people adopted the sys- j 
tern. (SeeR. of R. pp. 80, 109). The fathers not only cited Montesquieu’s theory j 
as their guide, but they conformed to it. The people as organized are sovereign. | 
To attend to self-government, small populations, and limited areas, are indis¬ 
pensable. To have the advantage of national strength and prestige, as large 
monarchies do, these small bodies of people must confederate and co-act as if a 
nation. Their federal acts must be done through agents with specified duties— 
the actual government being the republics thamselves, i. e., the self governing 
people. The strength of such system, where great States are its components, is 
its voluntariness, and resting on the rock of content. The plighted faith of sov¬ 
ereigns is the highest of sanctions, when it involves, too, the consent of all the 
people. Add to this the cement of amity, mutual interest, and confidence in jus¬ 
tice—the original motives of union, the “sacred ties” of Washington—and we 
have bonds which as Burke says, are “ as light as air, but strong as iron.” 

Some statesmen forget these, as well as the infinite moral force of the new 
“ article of union” written in blood. They also forget that nothing conduces to 
the content and improvement of our collective people so much as to let them 
alone Such statesmen are ever discussing the questions : Have we a govern¬ 
ment? Is the Union a rope of sand ? They are constantly strengthening power 
and preparing for resistance to it. They look with favor and pride on armies, and 
their efficiency in preserving law and order. Swift mails, railroads and tele¬ 
graphs are rejoiced in, as facilitating government from the centre. “ They lose 
sight of the people ” (Madison) except as subjects; and, in short, all their efforts 
and arguments are on the side of power and against liberty and self government. 

In conclusion, I hope Senator Edmunds will study, reflect upon, and be gov¬ 
erned by the faith of the fathers as found in the book. He must do so if he ever 
reach the truth and sound conclusions. 

Respectfully, 


P. C. Centz, Barrister. 





THE REPUBLIC of REPUBLICS; 

OR, 

AMERICAN FEDERAL LIBERTY. 

By B. J. SAGE, (P. C. Centz.) 


Fifth Edition , 8vo ., cloth , $2.50. 


This work may be styled the history and philosophy of our political 
system. It gives many original views, as well as novel and striking illustra¬ 
tions, while it overwhelmingly proves by conclusive testimony all its 
statements. The high character of the work, the interest it excites, and the 
impression it makes, may be estimated from the following 

COMMENDATIONS. 

Little, Brown & Co., of Boston, in publishing the fourth edition, state in 
a circular, that the author prefaces his work with the statement that its theory 
is “ precisely that upon which the anti-slavery sentiment of the country based 
itself in opposing the extension of slavery, the Fugitive-Slave Law, and indeed, 
slavery itself; while it supports the action (except nullifying) of those States, 
which have, from time to time, defended themselves against Federal excesses.” 
The author is one who never held or wished for office ; who belongs to no party; 
and who pleads to save the palladium of all his blessings—his Commonwealth. 


As to the first edition, published in London in the summer of 1865, Mr. 
Chas. O’Conor wrote the author, December 10th, of that year, characterizing it 
as “ an admirably prepared and overwhelmingly conclusive brief” for the defence 
of Davis, which, as to the points covered, made his “ task light indeed.” 

June 28th, 1866, Mr. O’Conor wrote: “ When you come to this country, I would be 
happy to confer with you on this subject, as your close attention to, and thorough understand¬ 
ing of a leading topic in the probable discussion give you gieat facilities for usefulness.” 

The following was written to the author, New York, October 24th, 1866. 

k ‘ Your views concerning some of the most important questions that are likely to arise in 
the trial of Jefferson Davis.have been carefully considered ; 

I need only add that it will be most agreeable to me for you to participate in the defence, 
should a trial take place .... The further preparation on the topics in question, which 1 deem 
advisable, has been fully disclosed to you in our oral conversations. I am, dear sir, with 
great respect, Yours truly, Charles O'Conor. 

Mr. Sage. 

“ This is the greatest work ever written on the Constitution and its history and philoso¬ 
phy.”—The late R. M. T. Hunter, of Ya. 









The Philadelphia Ledger, in July or August, 1865, stated that “a most important argument 
has been received by the President from London, in which, are set forth the reasons why 
Davis cannot be convicted of treason in any court,” &c. 

“ It it very able, exhaustive, and convincing.”— Henry May, of Md., 1865. 

“It is historically correct, and very strong in its logie.”— Andrew Johnson, 1865. 

“ The work is most admirable, well arranged and cogent; and the time must come when it 
will command a prominent place in every library.”—An eminent journalist of New York, 1865. 

“This treatise is a very extraordinary work, considering that it was written by an English 
lawyer. It exhibits an unusual acquaintance with the history and philosophy of the federal 
constitution and union .”—Mobile Register , 1865. 

“ One of the gentlemen retained as counsel for Mr. Jefferson Davis, has prepared the 
historical argument for that defence. It is a thorough and exhaustive digest of the opinions 
of the fathers, on the formation of the union and the sovereignty of the states ; and you will 
be surprised, as I have been, at the extraordinary mass of historical support the argument 
receives.”— Wm. <J. Prime, 1868. 

The above commendations refer to the first and second editions, while the 
following relate to the third and fourth. 

In the original brief or protest “ he evinced such a profound acquaintance with the history 
and philosophy of the constitution, that a re-publication of the argument has been repeatedly 
suggested. The present volume, which is an expansion of the essay written sixteen years 
ago, will take rank as the most exhaustive and authoritative discussion on the subject”— 
“M. W. II.” New York, Sun. 

[ Attributed to J . V. Benjamin.] 

“ The work is one of extraordinary merit.It is a perfect marvel of careful study and 

patient investigation. a most valuable contribution to the historical literature of the 

times, and one worthy of a place in every statesman’s library, as well as in all the public 
libraries of the country .”—Boston Herald . 

It was generally admitted that the argument thus presented (in the first edition) had much 

to do with bringing about the final abandonment of the trial.Besides special and direct 

value in setting forth the inalienable rights of states, it is a learned and able protest against 
centralization.”—A. Y. Herald. 

“He [supposed to be J. P. Benjamin] has produced the ablest, clearest, most satisfactory 
and most conclusive work ever published on the subject, proving himself perfect master of 
the undertaking, evincing a degree of learning, talent, industry and perseverance possessed 
by very few men in this or any other country.”— St. Louis Christian Advocate. 

“ The work is certainly a very able presentation of his side of the question ; compelling 
recognition of great logical power, and a profound scholarship in the law of nations.”—Senator 
Frye, of Me. 

“ I value it exceedingly. I am under real obligations to its author.I keep it with me 

always. It is certainly one of the most complete and convenient books of reference I have 
ever seen.”—The late Senator B. H. Hell, of Ga. 

“The importance of the work cannot be over-estimated, showing as it does, most con¬ 
clusively, the true nature and scope of the state and federal government. With me, it has 
been, and will continue to be a constant study; and I shall ever hold myself under great 
obligation to the learned author.”—Ex-Senator Eaton, of Ct. 

“ It is a work of great labor, diligent research and extraordinary ability.a text book 

for students, lawyers and statesmen.”—J. Randolph Tucker, Va. 

“The people must be instructed as to what our system really is, and the ‘Republic of 
Republics ’ is the best teacher that can be presented. It ought to be a textbook in every insti¬ 
tution of learning in our country.”— Richard Vaux, Pa. 

“ It propounds the true theory on which our government was constructed, and supports 
it by authorities that cannot be overthrown. It is a fortress of facts and of logic perfectly 
impregnable I know of no book of the same size that has so much of research and demon¬ 
stration.”—J. F. H. Claiuorne, of Miss Ex M. C. and Author. 

“ I find much that is entirely new, not only in facts, but in conclusive arguments and 
illustrations, that preclude every chance of doubt.”—Ex-Sen. and Ex-Gov. Brown, of Miss. 

“ The more I read of it, the more I wonder at the author’s thorough acquaintance with the 
subject, at the infinite research he has given it, and the complete and inexorable loeic he 
possesses.”—Judge Barton, of Ya 


\ 









The Philadelphia Press, adversely criticising, says the book “exhausts the argument for 
sit theorythat the author shows “great research and keen legal acumen ” ; and that “the 
number of authorities cited (in support of its argument) is something incredible.” 

“ A perfect store house of authority and arguments for the side it represents. For the 
statesman, the politician and especially the student of the history of the federal government, 
it is undoubtedly the book of books ; its like has never before appeared.”— Richmond Whig. 

“ This is the most thorough and exhaustive treatise we have yet seen as to the relation of 
the states to the general government; and it should be in the hands of every statesman. The 
facts stated are irresistible, the reasoning is cogent, and the conclusions are so fortified as to 
be absolutely Impregnable.’ —Mobile Register. 

“ I read the ‘Republic of Republics’ some months ago with great pleasure ; and I regard it 
now as the ablest exposition of the republican government which has ever been written in 
this country. —Senator George G. Vest, of Mo. 

“We admire especially its fullness, accuracy, logical method, searching analysis, absence 
of dogmatic assertion, completeness of proof, and the manifestlove of truth of the author.”— 
New Orleans Picayune. 

“ The author takes no position which he does not fortify impregnably, and makes no 
assertion which he does not fully prove. It is, in fact, a cyclopedia of political science worthy 
to be studied by jurists and statesmen, and equally worthy to be made a text-book for colleges 
and universities. The volume is pervaded by the very spirit of truth, and adevout reverence 
for human liberty. It is my belief that it is the ablust work ever written in support of the 
right of self government, as well as the best of all treatises on our American Federal 
System.” —Edmund W. Halsey, a Leading Editor of Louisiana. 

“ It embodies a multitude of facts in a narrow compass, pursuing an excellent method in 
their arrangement, arid constituting, we repeat, a decided improvement upon ail works treating 
of the same topics which have appeared since the commencement of this century.”—Prof. 
Whitaker, Editor Ho. Quart. Review. 

“ The book is dispassionate and philosophical, but plain, lucid, terse and incisive. Without 
any partisan spirit whatever, it cuts into the heart of the subject; lays bare its principles and 
establishes the Federal character of the Union on an impregnable foundation.”— Mobile Cycle. 

“ It is the most complete exposition of the true theory of our government we have ever 
seen .'''—Montgomery Advertiser. 

The masterly work,‘The Republic of Republics,’wliicb has generally been attributed 

to Mr. Benjamin .will invoke the careful study of all who would get at the bed-rock of our 

Constitution. ’ —Savannah News. 



“ T have read this great work with exceeding interest. It will make a most valuable 
addition to American political literature.”—The late Judge and Senator, II. M. Sdoeford. 


“ A complete vindication of the sovereignty of the States.”— William M. Randolph. 

“ The book is an invaluable exposition, showing the true theory of the Federal Govern¬ 
ment and its relations to the States.”— New Orleans Demoorat. 

“One of the most remarkable political works of the century.”— New Orleans States. 

“ It contains more condensed wisdom upon our American Governmental'Svstem than do 
all the other political works we have ever had in hand .....Any random passage exhibits 
the close logic and keen philosophy of the writer, his extraordinary command and analysis of 
facts, and the impregnable resources the subject has alforded his master hand.— Cleveland 
Universe. 

“It is a piece of honest work.The most honest, and laborious, and well-reasoned 

treatise I have ever seen on constitutional topics.Some one has said ‘ We never know a 

doctrine till we know its history.' This probably led you to explore the whole region of our 
earlier constitutional history, and in your two books we have the fruits.”— Alexander II. 
Sands, Va. 

“ This is one of the most remarkable books published since the Federal Constitution was 
adopted. A brilliant book. An exhaustive book. A wonderful book. It is a work 
written by a statesman for statesmen, and, indeed, for all citizens who w ould understand the 

Constitution as framed and understood by the fathers.The author has never held political 

office, but we speak advisedly in pronouncing him a statesman—a statesman in the highest 
and best sense of the word a philosopher, a jurist, a publicist of the first order...... I lie 

Republic of Republics ’ ought to be a text-book of constitutional interpretation in every 
institution of higher education in the land. But in addition to its solid and.substantial value, 
the originality of its methods and the brilliancy and piquancy of its style, give it for readers 
interested in the subjects of which it treats, the fascination of a romance. W. T. 
Walthall, a leading Editor. 












and the best poiYticaMvH^ n^er ^f^i* tkmiftiti ’r thG conutl 7’ p - Benjamin, 

marvelously able work, ‘The ReouwFc of RennhW i C °^f tltU ^ on ’ vl V, th , e author vf that 
gave to Mr Tilden, who agrees v? me Jhe^my copy 1 had of that book L 

our Federal Constitution,Its history and^er^etaUon^ upon 

If it had beinpubliThed thirty & y ears before 1 ViniVhf?^ t,1G f tatos \ and their, federal asrency. 

politics and averted the war.’W efferson bAvis.° ht h changed the whole course of our 
as follows “^ an<1 Fa "’ &C "” M ‘' - DaV ’ S Credits “ Tlle Re P ubhc °f Republics ” 


political learning?w1i| h b ”free?y aD u8ed T^ktad‘coneen’t *1,?°th? lnS “. wealt h of historical and 
acknowledgment in every case.” y ton8ent of the author without speciaL 

I could not^a^y thetreatiee <^^n, Yogr^aitly^wa^lfnterested^n^th 1 5r ° Ur . political literature, 
views could have been disseminated thirtvv^frV^ 4 . ^ the dl8cus?,on ' Oh, that these 
much harm. God only knows whether itVnnw ton lU/ 11 w° Untr3 l have been saved 

duty, and then abide our destiny ’ -X M. P^mer, D I) mUSt be hopeful aud do °ar 

THE GOULD PUBLISHING HOUSE, 

26, 2S, 30 Frankfort Street 


NEW YORK. 


i 



INDEX 


A. 

ABSOLUTE SUPREMACY. Claim of, by the 
General Government, 5, 6, 12, 17-19, 53, 
54, 215, 298, 300, 384. 

Leaves but the mere forms of institutional 
freedom, 258. 

Dicta of its assertors, 295, 296, 300-313, 360, 
368. 

Formula according to the “ school,” 297 
[Diagram]. 

Those who make the claim, 298, 303, 368. 

Means a corpoi'ate king over re-provincialized 
States, 215, 298, 299. 

Enslavement of the States under color of, 
300,361. 

The claim of, unconstitutional and treason¬ 
able, 379. 

ADAMS, J. Q. Fallacy respecting the Declar¬ 
ation of Independence, 290, 291. 

The people retain the dissolving as well as 
the constituent power, 330. 

The true tie of union, 427, 430. 

States have the right to secede, 330. 

ADAMS, SAMUEL. “ Sovereign authority of 
the States,” 35, 378. 

Palladium of the citizen’s rights, id., id. 

Union composed of sovereignties, 46, 79, 
368. 

Fears losing State sovereignty— Letter to R. 
H. Lee, 85, 378. 

Accepts Gov. Hancock’s “conciliatory propo¬ 
sitions, 86, 377. 

Says amendment X. secures State sovereign¬ 
ty, 46, 86,135. 

Distinction between Federal powers and sov¬ 
ereignty of the States, 87, 135, 378. 

Importance of the constitutional amend¬ 
ments, 87, 378. 

Consolidation reprobated by the highest 
advocates of the constitution, 378. 

AGENTS AND TRUSTEES. The state and 
Federal governments, 9-11, 37, 285,311, 
312, 374 (note). 

Agents and depositories, all governments,TO, 
11, 63, 64, 329. 

Agents, substitutes, and servants, 9-12, 61, 
63, 286. 

ALLEGIANCE. The State the only object of, 
34, 35, 339, 394, 398 et seq. 

Due to society or State, 59, 339, 402, 414. 

Social compact the tie of, 59, 339, 352,357, 
400, 402. 

Voluntary in a republic, 281, 282. 

States not in, 299, 326. 


ALLEGIANCE — continued. 

To a national government not provided for; 
that to the State never transferred, 56,397, 
400 et seq. 

Due by each to all, 352. • 

Claim of, by the general government, false, 
56, 57, 398, 399. 

Declarations and claims of, only by States, 
56, 400. 

Testimony of the States, 61-64, 400, 401. 

The oath to support the Federal and State 
Constitutions, 400, 401. 

Obligations of Federal officials, 401, 402. 

An essential and anti-constitutional right of 
the States, 401. 

And protection, 56, 414. Testimony of Vir¬ 
ginia, 415, 416. 

Transfer of, a dissolution of the State, 56, 
416, 417. 

Voice of the old Bay State, 417, 418. 

Conclusive proof: Pennsylvania, 281, 282 ; 
Vermont, 282, 418, 419; Massachusetts, 
282, 283 ; Kentucky, 419. 

Articles of the early faith, 34, 35, 419, 420. 

What the faith rests upon, 421. 

AMEND. States alone have the right, 57, 141, 
152,325,375, 379. 

What the right necessitates, 57,152, 286,325, 
326. 

Right to, involves right to abolish, 286, 325, 
326. 

Is exercised functionally, 286, 328. 

AMENDMENTS. The 10th equivalent to 2d 
Article first Federal Constitution, 46, 86. 

The 10th, proposed by Massachusetts, 86, 87, 
377. 

Scope and effect of this amendment, id. 
377-379. 

The “ conciliatory propositions ” of the fed- 
eralizers, 86, 377. 

Their adoption by States provided for in the 
Constitution, 152, 325, 326. 

A view of the early and later, 326, 327. 

Status and action of the States therein, 326- 
328. 

What amendment X. imports of the States 
and the Federal polity, 311, 378. 

Substance and aim of amendments IX., X., 
XI., 378, 379. 

The 11th, and the agitation which led to its 
adoption, 386, 387. 

AMES, FISHER. Questions of patriotism and 
honor above reason, 34. 

Union composed of sovereignties, 47, 376, 
377. 





586 


INDEX. 


AMES, FISHER — continued. 

Denounces and denies consolidation, 81,82, id. 

State governments essential parts of the sys¬ 
tem. Senate represents sovereign States, 
id ., id. 

Beautiful illustration of the purpose of the 
Union, 314. 

State governments a shelter against the 
abuse of power, 391. 

AUGUSTUS CAESAR. His character as a 
ruler, 19. 

The imperial system, 19, 20. 

Absolutism under forms of Commonwealth, 

20. 

AUTHORITY. Sovereign, of the State the 
palladium of personal rights, 35, 378. 

How manifested in our republican govern¬ 
ment, 294, 295 (Illustration). 

Grades and impartations of, as contemplated, 
296, 297 (Illustration), 365, 366. 

Grades of, according to “ the school,” 297 
(Illustration). 

Grades of State and Federal, 300, 301 (Illus¬ 
tration). 

States the source of all, 29, 301, 302 [Dia¬ 
gram]. 

Exposition and summary as to grades, 303, 
304. 

Highest of all human, 329. 

Of the general government, delegative and 
ministerial, 369. 

The fathers aimed to guard against a danger¬ 
ous increase of Federal, 373. 


B. 

BARLOW, JOEL. “ Consoling principles ” of 
our Constitutions, 347,348. 

The aim was to federalize, 77. 

BENTIIAM JEREMY. Of writing on law, 53 
(note). 

The influence of a great name in teaching or 
mis teaching, 54. 

BILL OF RIGHTS. Amendment X.,a sum¬ 
mary of, 86, 389. 

Not needed in the Federal Constitution, 237, 
245. 

Definition of, 266. 

BLACK, JUDGE J. S. As to the 14th party 
to the compact, 259, 260. 

As to source of the right of trial by jury, 

265. 

BLACKSTONE, JUSTICE. The social com¬ 
pact, 65, 284. 

Jura summi imperii in the people, 309. 

BOWDOIN, GOV. JAS. The States sovereign, 
48, 368. 

The new system a confederacy, 81, 368. 

All power is from the people, 84. 

States empower, id. 

BREARLY, D. Advocate of federation, 97. 

“BROKEN CONDITIONS.” A dissolution of 
the engagements, 208. 

The State the judge of, 356, 357, 409. 

BROOKS, GEN. Opposed to consolidation, 
80. 

BROUGHAM, LORD. On the American Con¬ 
stitution, 332. 

It clearly forms “ a federacy of States,” id. 

BUCHANAN, PRES. Divine origin of the 
government, 18. 

“Essential attribute of perpetuity,” id. 

BURKE. Perversion of popular magistracies, 
7,19,69, 333, 431. 

The ties of union, 67. 

Society a compact, 285. 

Theory of the republic, 291. 


c. 

CABOT, GEORGE. The union of sovereign 
States, 48. 

Consolidation of the States inadmissible, 81. 
Sovereignty of the States represented by the 
Senate, id. 

CALHOUN, JOHN C. Resolution declaring 
character of the Union, U. S. Senate, 204, 
211 . 

CASS, GEN. LEWIS. And squatter sover¬ 
eignty, 322. 

CHANGE. From agency to sovereignty by 
perversion, Burke, 7, 19, 69, 333, 431. 

From tl^e first to the second Federal Consti¬ 
tution, 75, 76. 

By usurpation threatens us, 334. 

The alleged, from federation to another sys¬ 
tem, 42 et seq., 144, 145, 185, 186. 
CHARGES. “Expoundings” identical with, 

16, 159. 

Comparison of, and “expoundings,” 159 et 

seq. 

“ CHECKS AND BALANCES.” Our system 
one of, 13,144,145 (Illustration), 363. 

How provided for, 363. 

CITIZENS. Citizen. Collectively are the State, 

28, 394, 397 et seq. 

Govern and are governed, 28, 29, 282, 295 
[Diagram]. 

Parties to the social compact, id., 281 et 
seq., 363, 402. 

Dual capacity, 28, 295. 

Endowed with suffrage by the community, 

17, 29. 

As members of the political community, 28, 

29, 56, 283, 329, 409, 410. 

One cannot commit treason in obeying the 
will of his State, 29 et seq., 394, 402. 

Why subject to the Federal compact, 29, 30, 
56,125,196,197,292,394, 395,414,415,424. 
All are members and subjects of States, 30, 
56,151, 296, 410. 

Allegiance of each is to his State, 30, 56, 363, 
394, 397, et seq., 408, 409. 

Are subjected to the Federal judiciary by their 
States, 150,151. 

As sharers of sovereignty, 60, 151, 244, 378. 
Obligations of, rest on voluntary engage¬ 
ments, 281-284, 292. 

Supreme Court ignores dual capacity of, 296. 
The State the palladium of his personal 
rights, 35,378. 

Legal and political duties of, 380, 381. 

One in defending his State defends himself, 
408 et seq. 

Each one an integral part of his own Com¬ 
monwealth, 397, 399, 409. 

The tie that binds the, to obey, 424. 
CITIZENSHIP. Averments of facts as to, and 
allegiance, 56. 

The transfer of would dissolve the State, 56, 
397,416,417. 

Delegating of powers not a transfer of, 310, 
311,402, 416, 417. 

President Jackson’s mistake, id., id., id. 
The only, is of States, 56, (note, p. 151), 394, 
397. 

Of a national government never provided for, 
397, 410, 411, 416. 

Of States never transferred, id., id. 

The “uniform rule of naturalization,” 398, 
399. 

Congress’ assumption of the naturalizing 
authority, id. 

Testimony of the States, 399, 400. 

The official oath required by the States, 401, 
402. 



INDEX. 


587 


CITIZENSHIP — continued. 

Massachusetts’ declaration, 417, 418. * 

Vermont and Kentucky testify, 418, 419. 

Conclusions, 419, 420. 

CLINTON, GEORGE. Letter explaining the 
ratification of New York, 94. 

COERCION. No constitutional authority for, 
against States, 23,177, 178, 196, 197. 

The only basis of, 23, 24. 

Of States rightful under the jus gentium, 24 
et seq. 

Not inconsistent with the Constitution, 25, 
26. 

Of citizens, the aim of the Commonwealths, 
29, 30, 261, 262, 403. 

Of States excluded from the system, 177, 178, 
196, 197, 299, 373, 375, 378,379 et seq., 387. 

Of States held inconsistent with the plan of 
federation, 178, 200, 201, (note, Reserved 
Powers, 200), 384. 

Why kept out of the Constitution, 299. 

Of States with arms; or by legislation , or 
even judicially, prohibited, 261, 262, 382 
et seq. 

The question, in the Federal convention, id. 

Federal, of citizens, agreed upon, 382, 385. 

W'hat the fathers say, 383, 384. 

Of a State is war, 384, 385. 

By the general government is treasonable, 
384, 387. 

To avoid, of States, the great aim of the 
fathers, 385. 

Crowning proof, id. 

Even judicial, of States not intended, 261,262, 
385-387. 

The agitation which led to the adoption of 
the 11th amendment, 386, 387. 

A State’s free will survives her making of the 
union, 387. 

Summary and conclusions, id. 

COLONIES. Political character of the Ameri¬ 
can, 3 et seq. 

Their individuality, id. 

Their change to States by the Revolution, 
id., 73 et seq., 276-278. 

How distinguished from a State, 1, 292, 332. 

Different forms of polity, 350. 

Their separateness and individuality, 349- 
351. 

As rising States, 350. 

Associate to gain independence, 4, 276. 

Independence makes, sovereign States of, 4, 
278, 288, 289, 328, 329. 

George III. acknowledged them sovereign 
States, 4, 329. 

Their union for independence; impelling 
causes, 351. 

COMMON WEALTH. Attacked by her own and 
her sisters’ subjects, 34. 

Synonymous with State, “independent body 
politic,” 63, 64, 202,203. 

The absolute existence of the American, 57. 

Let us preserve these citadels of liberty, 68, 
69, 223, 265, 266. 

They ratified and gave the government ex¬ 
istence, 144, 145, 170, 183. 184. 

The union an association of Commonwealths, 
145,157, 347. 

They are the source of all power, 144, 145, 
297 [Diagram]. 

Their distributed powers, 181. 

Growth of an American, 275 et seq. 

Distinction of, from a league of States, 274, 
275, 282. 

As a sovereign, 278, 282, 283. 

Political sovereignty of, 294, 295. 

Increase of the American Commonwealths; 
their autonomy, 347. 


COMMONWEALTH — continued. 

Subjugation of, 297. 

Self-organized and self-governing, 301, 302 
[Diagram]. 

\ Agents of each and all jointly compose the 
government, id., id. 

Repository and distribution of powers, 310, 
311 [Illustration]. 

The organized, sovereign people, 322, 323. 

COMMUNITY. Sovereignty of, not impaired, 
by the delegating of powers, 281. 

vs. Government; historical illustrations of 
distinctions between, 288, 289. 

Existence of former not involved in a change 
of the latter, 289, 290. 

Obligations to the, rest on voluntary engage¬ 
ments, 292- 

COMMUNITIES. The people as sovereign [Il¬ 
lustration] 297. 

Sovereign political (c.) in convention of, 1787, 

With absolute control of their condition, 328, 
329. 

“COMPACT, CONSTITUTIONAL.” Webs¬ 
ter’s strictures on Calhoun’s resolution, 

204. 

“Compact” and “accede” are correct, 204, 

205. 

The language of the fathers, 205, 206, 207. 

Mr. Webster’s later admissions, 207 et seq. 

COMPACT, FEDERAL. — Political bodies or 
States form federation by, 22, 57, 124, 125, 
136, 137 et seq., 140. 

Obligations of, on citizens, 29, 30, 57, 125, 
382,383, 385. 

Declares citizens remained citizens of different 
States, 29, 30, 151, 296, 397. 

Only possible result was a, 137. 

Nine parties established, 124. 

And the compact of Confederation, 144, 145, 
152,153. 

States the only parties to, 153, 154, 155. 

Is hidden by a simulacrum, 162. 

Ordinances of ratification prove the establish¬ 
ment of a, 167, 168. 

Required States to ordain, 153, 169, 170. 

The general government not a party to, 193, 
259, 260, 364. 

Testimony of the Fathers on, 202, 203, 204 et 
seq., 282. 

The alleged sectional equilibrium and, 208, 
209, 263. 

Was not a second social compact, 288 et seq. 

Sphere of, 358, 359. 

Coercion of the States a dissolution of, 383. 

No claim of allegiance in, 397, 400. 

Shows the State to be the only object of trea¬ 
son and citizenship, 414. 

COMPACT, SOCIAL. Imported theory of, 18, 
19. 

State formed by, 22, 28, 29, 278 et seq., 339, 
394, 409, 410. 

Sole cohesive force of a republic, 56, 266. 

Reciprocal obligations under the, 56, 352, 357. 

The only tie of allegiance, 56, 339, 400. 

Testimony of Massachusetts, 60, 61, 282, 283. 

The fallacy of a second, 126, 127, 288 et seq. 

Is the organic law of the society, 266, 288. 

Not necessarily mentioned in Constitutions, 
266. 

As exhibited in Pennsylvania, 281 et seq. 

Rationale and elements, 283 et seq. 

Vattel and authorities, 284, 285. 

Fallacy of Story and others, 288 et seq. 

And the Declaration of Independence, 290, 
291. (Note on “ The School.”) 

Hume’s alleged explosion of (note, p. 18), 
291. 

Is the germinal idea of the republic, 292. 



588 


INDEX. 


COMPACT, SOCIAL— continued. 

The duties esseutial to, 55,56 (Averment of 
Facts), 357. 

CONFEDERACY. Our association of States, 
testimony of the fathers, 42-48, 80-82, 205- 
207, 229, 230. 

The Union necessarily a, 48, 49, 136, 156. 

Sovereignties may unite in a, 298, 332, 347. 

Mutual relations of members: as an inde¬ 
pendent power, 347. 

CONGRESS. The powers of, the result of a 
compact, 10 et seq , 149, 150. 

The Continental, declares the new federaliz¬ 
ing instrument complete, 126, 127, 364. 

Provides for carrying it into effect, id. 382. 

Members of, are citizens and subjects of their 
respective States, 149. 

Legislative powers of, 149, 150. 

Both Houses of, elected by, and do represent 
States, 150. 

The House of Representatives not national, 
149, 150, 176, 179, 180. 

Is to propose amendments, 152. 

Is a, of States, not of the people at large, 179, 
180. 

A diplomatic as well as a legislative body, 
180, 238. 

And the power to admit new States, 354. 

CONNECTICUT. Federalizes herself, 89 et seq. 

Date of ratification, 89. 

Vote on ordinance, id. 

Her leading statesmen on the proposed union, 
89, 90. 

“ We the people,” means, 90, 91. 

Ratifying and ordaining words, id. 

Declares acts of Congress in violation of the 
Constitution void, 380. 

CONSENT. The phrase “consent of the peo¬ 
ple,” and self-rule, 348. 

In republican government means “will of 
the people,” 271 [Motto]. 

Of the States to the Constitution, 172 et seq. 

Of the governed, 264, 291, 292, 294. 

CONSERVATIVE ERRORS. The study our 
polity demands, 255. 

“A REPUBLICAN FORM OF GOVERN¬ 
MENT.” 

Meaning according to the fathers, 255 et seq. 

Can but mean a republic in fact, 255-257, 
359. 

Errors in exposition, 256. 

“ THE 14th PARTY TO THE COMPACT.” 
The general government erroneously al¬ 
leged to be, 259, 260. 

The real 14th party is “ the United States,” 
260. 

“NULLIFICATION.” First appearance of 
this error, 260, 261. 

South Carolina’s false position, 261, 262. 

The proclamation of force a blunder, 261. 

Mr. Webster’s assumption and avoidance, 
261, 262. 

Distinction between nullification and seces¬ 
sion, 262. 

“THE LOST PRINCIPLE.” Sections, or 
groups of States, also parties to the com¬ 
pact, 263, 264. 

The idea of a compact of sectional equilibri¬ 
um inadmissible, 209,263. 

“THE CONSENT OF THE GOVERNED.” 
In a republic the proper word is will, 264. 

“ THE WILL OF THE MAJORITY RULES.” 
Fallacy of the saying, 264, 265. 

Parties govern and tend to destroy liberty, 
id. 

“THE CHARTER OF OUR LIBERTIES.” 
The understanding then and now, 265, 
266. 


CONSERVATIVE ERRORS — continued. 

SOCTAL COMPACT. CONSTITUTION. 
BILL OF RIGHTS. Defined and discrim¬ 
inated, 266. 

THE GROWTH AND DEVELOPMENT 
THEORY, 266, 267. 

SECESSION. A right within the law of self- 
preservation, 267, 268. 

Its surrender indefensible, 268. 

The right should be admitted, id. 

The late, and its teachings, 268, 269. 

CONSOLIDATION. Excludes the idea of 
Union, 46. 

No evidence of, of the States, 58, 145, 156, 
169, 172, 180. 

Repudiated by all in Massachusetts, 80-82, 

378. 

Mr. Dench and Gen. Brooks on, 80. 

Gov. Bowdoin, Sumner, Parsons, Sedgwick, 
Dana, &c., on, 81, 82. 

Fisher Ames’s strong assurances, id., 376,377. 

Distinction between, of States and, of the 
Union, 81, 109, 110. 

Pleas and assurances of the Federalists, 82, 
85-87, 107-110, 376, 377. 

The amendments guarding against, 85, 86, 
377-379. 

The amendment respecting delegated and 
reserved powers, 85, 86, 377. 

Importance of the amendments, 86, 87, 378, 

379. 

Possibility of, under the new government 
strongly urged, 107, 159, 376, 377 et seq. 

What was understood by the charge, 109,110. 

Virginia and New Hampshire second Massa¬ 
chusetts in demanding guaranties against, 
112 . 

Pith of the doctrine of, 142,143. 

Did the American people really adopt, 163, 
164. 

Problems for the supporters of, 285, 286. 

Their dilemma, 292, 293, 368-370. 

Unheeded form of, the worst, 363. 

The idea emphatically disowned and de¬ 
nounced, 376 et seq., 378. 

Would have been a fatal objection to the new 
government, 377. 

Grand result of the movement against, — 
adoption of amendments IX., X.,XI., 378. 

Obvious import of Amendment X., 379. 

CONSTITUTION, THE. Provides for a union 
of States, 4, 5, 124, 136 et seq. 

The “Expounders” have made a spurious, 
16, 78, 124, 162. 

False charges adopted as expoundings of, id., 
id., id., 159 et seq. 

No coercive power over States in, 23,178, 196, 
197, 201. 

Settles pro tanto international questions 
among States, 23, 24, 377. 

Evidences a federation of sovereignties, 42 
et seq., 136, 137, 140-142, 148, 149, 240. 

It fully recognizes States, 45, 46,125,137,140, 

141.147, 148, 325, 357. 

Not the, but the States “reserved,” 53, 54, 
169, 181. 

Recognizes citizens as of States. 56, 143, 151, 
288, 296. 

The wills that made it survived, 57, 58, 73, 

75.147, 152, 256, 357. 

Itself provides for its amendment by States, 
id., 64, 147,152, 325. 

Is law in a State by her will, 64, 77, 120, 154, 
337. 

And the Social Compact; Expounders’ sub¬ 
terfuge. 64, 65, 127, 388, 389. 

Is the delegating of an extensive trust, 75, 
125, 311, 390. 





INDEX. 


589 


CONSTITUTION, THE - continued. 

Ordained by States in their respective con¬ 
ventions, 77, 136, 137 et seq. 185,189, 190, 
296, 300, 357, 364, 413. 

The federal, is an addition to a State's, id. 

Ratification alone vitalized it, id ., 137, 140 
143, 154, 168, 184, 256. 

As “ the supreme law,” 78,120,137,141 142, 

143, 152, 153, 181, 182, 194, 195. 

States the only parties to, 124, 125, 136, 137, 
140, 153, 263, 279, 280. 

The “ national,” of the consolidationists, 121 
122, 132, 133, 290, 298, 299, 313. 

Was a mere proposal of the convention to 
States, 137, 141-143, 223, 225. 

Is a league or compact, 137,140,141,166, 202. 

Is a fundamental law, 137, 256, 257, 289, 302. 

Is a constitution of a governmental agency, 
265, 288, 289, 292, 293. 

Or “ Deed ” as executed, 138-140, 154. 

The alleged “ done in convention ” adden¬ 
dum, 142.143, 154,155, 172, 173. 

Exposure of this deceptive presentation, 143, 

144, 153, 154. 

The true presentation, 137, 138, 139,154 

Testimony of, as to sovereignty, the Govern¬ 
ment, the State§, and the Union, 147 etseq. 

Shows a union of distinct commonwealths, 
each sovereign, 148. 

And the Confederation, 144, [ Diagram ] 152, 
153, 199, 200-202. 

Is not a Government, 153. 

No evidence that a nation ordained, id., 155, 
156, 168, 172, 178, 179. 

A complete idea of, 140. 154. 

Contains only delegated powers, 155,172,191, 
305, 312, 316, 317, 324, 363, 364. 

The only legitimate theory of, 155, 156. 

What the perversion of, has wrought, 162. 

Motives for the perversion, 164, 184. 

Is a compact and law, 166. 

Ratifying alone established, 168, 169, 172, 
184, 185, 256. 

Does not of itself prove its authority, 154, 
168, 171, 172. 

Was never voted on by the people directly, 
170. 

The signatures to merely authenticate the 
instrument, 171, 172. 

Is the law of the Government’s being, 172, 
265, 288, 289. 

The States are named in, 174, 175. 

Is not a law over the States, 176, 178, 196, 
197. 

Federal in its establishment, pro tanto na¬ 
tional in operation. 178, 179,196, 197. 

Is necessarily a federalizing instrument, 184. 

“National” word and idea stricken from 
plan of, 200. 

Aims not at State coercion, 201, 384. 

“ Constitutional compact.” Criticism of Mr. 
Webster’s criticism, 204 et seq. 

Does not contain the word “ sovereignty,” — 
said Mr. Lincoln, 216, 217. 

The true and the false construction of the 
language of, 253, 254. 

Meaning of the guaranty clause of, 151, 256, 
257,359. 

“ The great constitutional charter ” — earlier 
and later acceptation, id. 265. 

A constitution of Government, definition, 266. 

How the, relates to the sovereignty and the 
Government, 289. 

The clause providing for the admission of 
new States, 151, 152, 354. 

Is subject to the will of the people, 303, 329. 

States not subject to, 325, 326, 382. 

Aim of the fathers in making, 359, 360. 


CONSTITUTION, THE — continued. 

Federal usurpations violate, 376, 391, 392. 

Leaves the States to provide for their own ex¬ 
istence, 392. 393. 

Proves the State the sole object of treason, 
394, 413 et seq. 

CONVENTION OF '87. Held States the par¬ 
ties to the establishing of the Constitution, 
125, 126. 

Membei's were citizens and agents of States, 
id. 

Said the new system was “ the Federal govern¬ 
ment of these States, id., 202, 274, 294. 

Said the making of the Constitution was the 
“ delegating ” of an “ extensive trust,” 125. 

Merely framed the plan and submitted it to 
the States, 140, 205, 225. 

Character and work of, 154, 155, 172, 173, 
184. 

The signatures simply authenticate and re¬ 
commend the instrument, 171. 172, 173. 

Did not represent a nation, 173, 174. 

The resolutions laid before, and action there¬ 
on, 197 et seq. 

The States’ instructions to the deputies, 198, 
198. 

The aim was to federalize, 199. 

Eliminated “national” from the system, 200. 

Unanimously rejected proposal of veto on 
State laws, 200, 201. 

Action on the preamble, 201, 202. 

Adopted a compact of Federal government, 
201-203. 

“ United States” means the people as States, 
294. 

Was a voluntary assemblage of equal sove¬ 
reign States, 328. 

On the mode of enforcing Federal jurisdic¬ 
tion, 382 et seq. 

CONVENTION, STATE. Authority and pow¬ 
er of the secession conventions. 36, 37. 

Is the immediate representative of sovereign¬ 
ty, 261. 

And ratification, 140. 

The ratifying conventions, their action and 
powers, id., 154, 155, 301, 302. 

“CONVICTIONS, PUBLIC.” The, wrought 
by Webster, and consequences, 52, 57, 

165. 

Curtis’s presentation of Webster’s claim, 165, 

166. 

Strengthening the, 174,178,188 (note, p. 186). 

COXE, TENCH. Constitution adopted by 
States, 46. 

Union excludes the idea of consolidation, id. 

The Union was of sovereignties in a confed¬ 
eracy, id., 361, 368. 

The Constitution a contract among sovereign 
States, 238. 

Question with the confederating States, 282. 

Distinction between Commonwealth and con¬ 
federacy, id. 

CURTTS, G. T. Present principal of the 
“ Massachusetts School,” 50, 51. 

Merely repeats and amplifies, 52. 

Fallacy of a second social compact, 64, 173, 
174, 288 et seq., 290. 

Authorities he does not quote from, 88. 

Congress the final judge of its constitutional 
powers, 161. 

What he claims for Webster, 165, 166. 

And the ordinances of ratification, 170,183, 
188 et seq. 

Garbling the ratifications, 183. • 

Ratification a deed, not an ordinance, 1S8, 
189, 190. 

Shows himself conspicuously unreliable 
herein, 190, 191. 



590 


INDEX. 


CURTIS, G. T. — continued 

Queer doctrine of the “ irrevocable grants of 
political sovereignty,” 191, 192, 316. 

The same shown to be baseless, unhistorical, 
illogical, 192, 193, 317. 

Attempts to explain away Webster’s “ con¬ 
stitutional compact,” 208, 209. 

Notion of a sectional equilibrium, id., 263, 
264. 

Sovereign authority of a State the highest of 
all human, 275, 328, 329. 

The nation form a second social compact, 
280,288 et seq., 302, 311,312. 

Substance of his contention, 290. 

The general government final judge as to its 
own powers, 293,368. 

“ Political sovereignty ” set forth ; Sovereign 
powers divisible; States put a part of their 
sovereignty in the Constitution, 192, 193, 
316. 

“Granted irrevocably,” — unwarranted lan¬ 
guage, 188, 189,190-193, 316, 317, 340-342. 

Self-stultifying admissions. The State in the 
“position of absolute sovereignty,” at the 
close of the Revolution; Convention of 
1787 one of equal sovereign political com¬ 
munities ; only sovereign authority of the 
people can order political conditions of 
society; all supreme power is in the peo¬ 
ple ; governments are their agents and de¬ 
positaries ; the people may revoke grants 
of power, &c., 328-330. 

Fatal admissions v. his “ History,” 329, 410. 

The “American doctrine” as to powers, 
grants of, governments, and withdrawal, 
329, 333, 334, 359, 368, 374. 

The evidences he fails to produce, 330. 

Torturing the treason clause, 413. 


D. 

DANA, HON. MR. The government federal, 
not consolidated, 81. 

DANE, NATHAN. Original enemy of the Con¬ 
stitution, 16, 52, 162. 

Founder of the “ Massachusetts school,” id. 

Gamaliel of Story and W’ebster, id. 

Effects of his teaching, 16. 17, 165. 

Expounding of the preamble, 167. 

DAVIE, W. R. Consolidation would be an in¬ 
superable objection, 129. 

State governments necessary to the federal 
government, id. 

Senate represents sovereignty of the States, id. 

The Union a confederacy, id. 

On the supreme law clause, 177. 

Opposed to coercion, 384. 

DAVIS, JEFFERSON. Vindicating him and 
Lee, vindicates institutional liberty, 28. 

Taught secession at West Point by Uncle 
Sam, 32, 33. 

Or Lee no traitor, 36, 402. 

Not Davis and Lee, but States, seceded, 36-38. 

And Lee protected by the jus gentium, 39, 
40. 

Opposed to the policy of secession, 38. 

Statement of Hon. O. R. Singleton, id., note. 

Extract from letter of, on the subject, id., 
note. 

Comes not within the federal treason clause, 
402. 

Compelled to obey his State, 36, 37, 402. 

DECLARATION OF INDEPENDENCE. Not a 
social compact, 290, 291. 

The true idea of, 291. 

Embodied in New York’s first constitution as 
part of her fundamental law, 335. 


DEFINITIONS. Some decisive, 323, 324. 

The plain teaching of, 324. 

DELAWARE. Federalizes herself. The first 
to ratify, 104. 

Vote unanimous, date, id. 

Text of her ratification, 104, 105. 

DELEGATED AND RESERVED. Not the 
Constitution, but the States, 53. 54. 

The true exposition of, 181, 191, 192. 

DELEGATING. Vesting powers in govern¬ 
mental agency is, 191. 

So declared in ratifications of six States, 191, 
192. 

How the “ School ” construe the word, 316. 

Washington and federal convention contra, 
317. 

DELEGATION. The delegates, 274, 311. 

Of powers for federal government, id. 

Powers only subject of, 305-307. 

Sovereignty’s delegations, 310 (Illustration). 

Corollaries, 310, 311. 

What delegated; delegator and delegatee — 
authorities, 311, 312. 

Not alienation, 364. 

Of power to the federal government may be 
withdrawn, 302, 365, 377, 388 et seq. 

DENCH, HON. MR. Opposed to consolida¬ 
tion, 80. 

DESPOTISM. Change of the federal govern¬ 
ment to a corporate, 197, 215, 300. 

DESPOT. Personnel of the government have 
become a corporate, 215. 

DEVELOPMENT, OR GROWTH. An absurd 
idea as applied to written constitution, 
141,266. 

DIAGRAMS, ILLUSTRATIVE. The deed [fed¬ 
eral Constitution] as executed, 138, 139. 

Our union and the confederation, 145. 

Grades of authority, 295. 

The people govern the people, 297. 

“ Absolute supremacy ” formula, id. 

Chain of impartations of power, 301. 

Divided sovereignty, 308. 

The people as the sovereignty, with govern¬ 
ing agencies, 309. 

The State’s repository of powers, 310. 

Three distinct parts of the general govern¬ 
ment, 362. 

DICKINSON, JOHN. State sovereignty, how 
prized, 35, 395. 

The Union a confederacy of republics, 45, 
238,390,409. 

Sovereignty of each represented, id ., id. 

Character of the new confederacy, 239. 

Congress a diplomatic as well as legislative 
body, 238. 

His expositions strongly commended by 
Washington, id. 

Distinction between federal league and social 
compact, 282. 

In case of “bad administration” — what? 
390. 

Government agents and trustees amenable to 
their States, 395. 

DIVINE RIGHT. The spurious, 18. 

The people govern themselves by, 281, 286. 

The only, of government is self-government, 
id., id., 309, 408, 428. 

E. 

ELLSWORTH, OLIVER. The people’s devo¬ 
tion to States, 35. 

The Union a confederacy, 47 , 90. 

Aim of the proposed plan of government, 89, 
90. 

Motion to expunge “ national ” from the 
federal compact, 90, 200. 




INDEX. 


591 


ELLSWORTH, OLIVER— continued. 

Views on coercion, 90, 384. 

The States sovereign bodies, 367. 

Power of self-defence essential to small States, 
384, 388. 

States the guardians of personal rights, 396. 

States’ right of self-defence unlimited, id. 

EMIGRATE. Right to, recognized, 281, 292. 

Right vital to a republic, 282. 

EVARTS, W. M. Amusing mistake of, 295. 

The war made no change in the Union, 331. 

EVERETT, Edward. Ignores the ratifying 
ordinances, 170. 

Strengthening the “ public convictions,” 174, 
188. 

No power to coerce States, 178. 

Substituting “ deed ” for “ ordinance,” 174, 
175,188. 

He says the States are not named, 175. 

Exposd of his “views,” 192. 

Admissions touching the Constitution and 
the Union [note, 188], 330. 

EXPOSITION. Fallacious: An exposd of the 
so-called interpretations of the ‘ ‘ Massachu¬ 
setts school ” and of its aims and methods, 
159-254. 

Anti-National contemporaneous, 202, 203. 

Value of contemporaneous, 253, 254. 

Of the language of the Constitution, id. 

Judicial, of terms in laws, 254. 

Lessons to be derived from the expose, 269, 
270. 

“EXPOUNDERS.” Leading dogmas of the 
school, 12, 53, 54, 159 et seq. 

The people in the aggregate made a constitu¬ 
tion, id: 52, 313. 

The “ nation ” evolved, id. 144, 153,167, 280, 
288 et seq. 

States subordinated, id., id., 167, 280, id. 297 
[Diagram ] 313 et seq. 

Fallacy of a new-social compact, 18, 62, 65, 
280 et seq. 288 et seq. 

Dominion of the government, 12, 18, 296, 
300, 368. 

States have such status and rights as the 
Constitution assigns them, id., 53, 54, 290, 
293, 388. 

“Expoundings” and “charges” identical, 
16, 78, 159 et seq. 

Their refutation, id., 41 et seq., 53. 

The government a law unto itself, 19, 298, 
368. 

The chief expounders, 52, 162. 

The creation of the law supreme over the 
law-maker, 53. 

The federal pact a second social compact, 64, 
65, 127, 288 et seq. 

Change from voluntariness to involuntari- 

. ness of union, 58, 299. 

Testimony they ignore, 88, 159. 

The “ deed” itself contradicts them, 153. 

Deplorable results of their teachings, 165. 

Set up a screen before the Constitution, 166. 

No note of the ordinances of ratification, 167. 

The reason for the suppression, 170. 

Their “construction” means .fabricating. 
172. 

“ Supreme-law ” sophisms, 176 et seq. 

Proving too much, 178. 

Phrase-culling, 181, 186, 187, 197- 

The three cardinal assumptions of, 181. 

How “ reserved to ” is expounded, id. 

Garbling the ratifications, 182 et seq. 

Garbling the Federalist, 185 et seq. 

What the federalist really asserts of our 
polity, 186,187. 

Ratification according to the leading ex¬ 
pounder of the day, 188 et seq. 


“ EXPOUNDERS ” — continued. 

Suppression and distortion of the conven¬ 
tion’s records, 196 et seq. 

Style of quoting, 100,199. 

What their theory involves, 205, 296. 

Their stand in 1861, 213. 

Legitimate conclusions, in Lincoln’s plain 
English, 214. 

Their unionolatry, and why, 219, 220. 

Methods, pretences, and aims, 220. 

Subterfuge respecting the State and federal 
constitutions, 288, 289. 

Ignore dual capacity of the citizen, 295, 296. 

Illustrations of their theory, id. , 297-299,313. 

Facts and queries for, 301, 302. 

Notions of Sovereignty, 306, 307, 316 et seq. 

Delegating Sovereignty — reductio ad absurd- 
um, id., id. 

Sophistical exceptions out of sovereignty, 307, 
308, 314-316, 318. 

Defences made means of attack, 314. 

The stand is upon Lincoln’s dogma, 315, 
316. 

Arguing from false words, 317. 

The “school’s” corner-stone, 316. 

Test questions touching de-sovereignizing, 
329, 330. 

The alleged change from federation to another 
system, 12, 41, 42, 334, 368. 

The onus probandi, 335, 336. 

The alleged “ understanding,” 336. 

Virtually admit State the ultimate arbiter, 
358, 359. 

Verbal quibbles, 364. 

Contradict the fathers, 368. 

Touching the honesty of their “ convictions,” 
368,369. 

What their wrong-doing culminates in, 369. 

Their interpretation a subterfuge, 369. 

Error on the question of treason, 411, 412. 

Absurd notion of the transfer of citizenship, 
416,417. 

“ EXPOUNDING.” An essential part of the, 
theory, 295, 296. 

Theory of national “ absolute supremacy,” 
399. 

What the “school” have long tried to con¬ 
ceal, 303. 

Example of the most pernicious, 313, 314. 

Some of the most respectable professors of 
the “ school,” 316. 

Deceptive terms, 317, 364. 

Is become degraded, id. 

“EXPOUNDINGS” Modern, identical with 
the original charges, against the Constitu¬ 
tion, 16, 78, 159. 

Were refuted by Washington, Hamilton, and 
all the fathers, id., 42 el seq. 

Their refutation barely saved the system, 53, 
86, 87. 

Comparison of, with the charges, 159 et seq. 

Calamitous consequences of, 165. 


F. 

FACT. The character of our polity is matter 
of, 42, 50, 52, 53, 77,78, 166. 

Professors of, wanted, 49. 

Exposition of polity is exposition of, 51. 

Averments of, 55-57. 

Ordinances of ratification are indestructible 
facts, 167. 

The whole subject one of, 274, 368, 369. 

Issues of, tendered, 332, 333. 

Facts in the political history of Pennsylva¬ 
nia, 288, 289, 292. 

Facts as to the States, 392, 393, 325, 326, 359, 
360. 



592 


INDEX. 


FACT — continued. 

Title of the government an important, 201, 

202, 302. 

“ Most palpable of all the facts,” 331. 

Facts must prevail, 367 et seq. 

FATHERS, TIIE. The people sovereign the 
government an agency, 0 et seq. 

On coercion, 31, 32, 329, 377, 382, 383, 396. 

The great aim of, 355, 385 et seq. 

On love of one’s State, 34, 35, 395, 396. 

On the character of the union and the gov¬ 
ernment, 42, 136, 140,156, 33S. 

On the commonwealths, 65, 66, 169. 

On federalization, 31, 32, 42 et seq., 202, 

203. 

Theory of the Constitution, 155, 180, 202,203 

The “ supreme law ” clause, 177. 

The work of the convention, 201-203. 

Compact means Constitution, and accede, 
ratify, 206, 207. 

The social compact and the federal pact, 282, 
337, 338. 

Federal and State governments, 311, 312, 
355. 

Sovereignty and “sovereign powers,” 317, 
318. 

On delegations of power, 194. 

Our Constitution of general government, 367, 
368. 

On federal usurpation, 376, 377, 380. 

Self-defence of States, 388 et seq. 

FEDERALIST, THE. Testimony of the writers 
of, 42, 43. 

Federal and State governments, agents, and 
trustees, 30, 31. 

Testimony as to our polity, 43, 44, 179, 186, 
239, 240. 

Story’s garbling of, 185. 

Washington [who knew the writers] says the 
articles of, place the polity in a true light, 
239. 

FEDERALISTS, TIIE. Overcame the nation¬ 
alists, 75. 

Their theory of the Constitution, 275. 

FEDERAL AGENCY. The general govern¬ 
ment, 31, 32, 37, 193, 194, 302, 363, 374. 

Going into operation,. 125-127. 

Personnel of, 9,10, 29, 30, 143, 193, 364. 

Through which the States exercise federal 
self-govei’nment, 125, 196, 197, 374, 375. 

Empowered by the States to act on individ¬ 
ual citizens, 75, 261, 262, 383 et seq., 394. 

FEDERAL ACTS. Those outside of delegated 
powers nullities, 380, 381. 

Such acts, if enforced, are usurpations, id. 

FEDERAL COMPACT. Principles, modified 
by the war and results, 25, 26. [See Com¬ 
pact, Federal.] 

FEDERAL SITES. Terms upon which ac¬ 
quired from the respective States, 63, 340, 
341. 359, 360. 

New York’s qualified cession of, id., 233, 339, 
340,365. 

Massachusetts’, et seq. 63, 342. 

Pennsylvania’s, id., 343, 344. 

Virginia’s, id., 344. 

South Carolina’s, id., 344,345. 

The new States’, 346. 

Pertinent inquiries for the “ Expounders,” 
345. 

Conclusions. 346. 

“FEDERALIZE,” TO. An expression of Joel 
Barlow, 77. 

Its significance, id. 

The first move, 74, 75. 

Preliminary remarks on, 77, 78. 

Principles upon which republican States 
agree, 347,348. 


FEDERALIZING AND REPRESENTATIVE 
DEMOCRACY. The bases of our constitu¬ 
tions, 347, 348. 

FRANKLIN, BENJAMIN. Character of the 
Union, 44, 45. 

Senate represents sovereign States, id., 102, 
367. 

FREEDOM, POLITICAL. Conditions of its 
vitality, 348, 349. 

“FREE, SOVEREIGN, AND INDEPENDENT.” 
Use and meaning of the phrase, 333. 

FUNDAMENTAL PRINCIPLES. From the 
statements aud opinions of the fathers. 
Part V. p. 373 et seq. 

I. The people are the States, composing 
whatever nation there is ; the federal gov¬ 
ernment their agency, through which is 
federal self government, 373-375. 

II. The fathers aimed to prevent the federal 
delegative authority from increasing to the 
control and destruction of States, 376-379. 

III. Federal acts, outside of delegated pow¬ 
ers, to be treated as nullities, and, if en¬ 
forced, to be resisted as usurpations, 380, 
381. 

IV. Federal coercion of States is absolutely 
prohibited, 382-387. 

V. States have unlimited right of self-de¬ 
fence, even against the federal agency, 373, 
388, 393. 

VI. Defence of the State with arms, in obedi¬ 
ence to her will, is the duty of her citizens 
— is true loyalty, and not treason, 394- 
396. 

G. 

GEORGIA. Federalizes herself: Vote, date, 
121 . 

Ordaining words, id. 

GIBBON. A Roman chapter of American his¬ 
tory, 19, 20. 

GORE, CHRISTOPHER. The union of sove¬ 
reign States, 47. 

“GOVERNMENT, TIIE.” Abuse of powers 
by, 7. 

Self-consolidation of, 13, 17, 18, 300. 

The self-vaunted, 298, 303, 368. 

A misleading misnomer, 365. 

GOVERNMENT, SELF. [See Self-Government ] 

GOVERNMENT. The changes contemplated 
on the new. The fathers on the nature of 
our, 9-11, 44 et seq., 194. 

Consolidation of the federal, 13, 17, 18, 20, 
293, 334. 

Personnel of the federal, — “ citizens ” and 
“ subjects ” of States, “agents,” “substi¬ 
tutes,” “servants,” “representatives” of 
the people, id., 29, 30, 143, 194, 286. 312, 
364. 

The general, the creation of the States. 9 et 
seq., 31, 32, 126,137,140,153,154, 333,'363, 
414, 415. 

Federal and State Governments, but “ agen¬ 
cies,” “ trustees,” “ depositaries,” 10, 11, 
37, 193, 281, 302, 311, 329, 374, 375. 

No sovereignty in the general, 36, 37, 53, 54, 
63, 64,125, 273, 281, 305. 

View of Webster, 37. 

View of Kent, 340. 

Testimony of the Federalist, 42, 43, 239, 
240. 

Is mental and functional action, 57,152,285, 
306. 

All powers in the general, delegated by the 
States, 9, 10. 54, 63, 64, 75, 155, 172,191, 
305, 310, 382. 

Of subjection to the federal, 64, 75,196, 197, 
292, 385. 








INDEX. 


593 


GOVERNMENT — continued. 

True character of our, 76, 125,136, 140, 141. 
297,302,303. ’ ’ 

Empowered by the States to act on citizens, 
id., id., 196, 383 cl seq. 

General Constitution of the, effected by a 
league, 75, 77, 136, 137, 140, 154, 155, 266, 
275. ’ 

The general, is subordinate to the common¬ 
wealths, 77, 150, 151, 153, 177, 285, 361, 
414. 

The general, is the agency of the States in 
federal matters, 125, 136, 194, 302, 312, 
355, 373. 

When the federal began to be, 126, 127, 193, 
364, 369. 

Of the States jointly and severally, 127, 144, 
147, 196, 197, [Diagram], 

“ A republican form of,” 151,152, 255 et seq., 
359. ■ 

Is tripartite, as devised by the convention, 
144, 145, [Diagram], 

Is tripartite, distinct entities, coexisting and 
independently acting, 193, 362 [Diagram], 

The Constitution of, is not the government, 
153 

Ratification the basis for starting the new, 
167. 

The federal, has no coercive power over a 
State, 178, 197, 295. 

Distinction between the consolidated and the 
federal, 180, 202, 203, 296-298,345, 346, 
378,379. 

Our form of, 48, 77,176. 

The States are the real, 150, 191, 294, 299, 
394. 

The general, cannot be a grantee, 193, 363 
et seq. 

Cannot be a party to the act creating it, id., 
259, 260, 365. 

State and federal governments a great politi¬ 
cal machine, 196. 

The personnel , have become a corporate des¬ 
pot, 213, 363. 

All right of, is in society, 266,273. 

Constituting, vs. constituting society, 288, 
289. 

Change of, is not changing society, 289, 290. 

Best and most sacred foundation. 291. 

No, with coercive powers over itself, 295. 

The “ absolute supremacy” claim, 298, 300, 
360,368. 

Institutions of, 297. 

The real, is the republics, 298. 

Cannot control sovereignty, 299, 330. 

Grades of authority in State and federal, 300, 
301 [Diagram], 365, 366. 

American doctrine as to all, 329. 

Not the object of treason or allegiance in a 
republic, 339, 414, 415. 

The real gran tee is the federation or league, 
193, 260, 365. 

The special aim in forming the federal, 363. 

Our, according to the fathers, 367, 368. 

Our, according to the sons, 368. 

Is derivative and agential, 369, 374. 

As it was, 389. As it is, id. 

The federal, when a trespasser and perjured, 
380. 

A federal, with coercive powers over States 
visionary, 383. 

A coercive, how characterized by the fede¬ 
ralist, 385. 

The general, is dependent on the people’s 
free-will, 389. 

The guaranty of “ a republican form of.” 
Meaning of this clause in the federal Con-, 
stitution, 235 et seq., 359,360. 


GRANT, PRESIDENT. His phrase, “ Let us 
have peace,” 14. 

Duty to States under his oath, 14,15. 

Subjugating the commonwealths, 213. 

GRANTEE. Government cannot be, 193, 363, 
364. 

The real, was the federation, id., id. 

Was expressly “ the United States” eo no¬ 
mine, id., id. 

In the sense of trustee or agent, id ., id. 

GRANTS—None of power, in the sense of 
alienation, 191, 363, 364. 

GRANTS AND CONDITIONS. Object of, self- 
preservation of the State, 356. 

Who decides as to violations and forfeitures 
of, 356, 357. 

“ Expounders,” virtual admission, 358, 359. 

GREELEY, HORACE. States cannot be co¬ 
erced, 178. 

His American conflict, 315. 

GROWTH AND DEVELOPMENT THEORY. 
Insidious and pernicious error, 141, 266, 
267. 

H. 

HAMILTON, ALEX. The people sovereigns, 
9, 325. 

Character of the Union, 43, 93, 94, 239, 240. 

States the essential component parts of the 
system, id., id., 325. 

The “ supreme law ” clause, 177. 

States accede to the compact, 205, 206. 

The Union a confederacy, id , 367. 

The people of the United States as organized, 
299. 

The federal and State governments, 309. 

The States and the general government, 325, 
357. 

Invasions of public liberty, 357, 392, 393. 

The people masters of their own fate, id., id. 

People of New York sovereigns, 367. 

Unconstitutional laws not binding, 380. 

Coercion of States one of the maddest of pro¬ 
jects, 383, 385. 

His view of a government of coercion, 385. 

“ The great and radical vice ” in the confede¬ 
ration, id. 

Self-preservation of States, 392, 393, 395. 

Attachment of individual to his State, 415. 

HANCOCK, JOHN. The people the source of 
federal power, 85. 

People of the State can reject or ratify, id. 

Proposed the 10th amendment, 86, 377. 

His action as to the 11th amendment, 387. 

HENRY, PATRICK. Opposition to the union, 
107. 

On the concurrent powers of taxation, 109. 

The soul of a confederation, 111. 

The charge of consolidation, 160, 161. 

HISTORY, AMERICAN. On the common¬ 
wealths, 65. 

Shows the States forming government, not 
society, id. 

Sovereign republics constituted a federal 
government, 136. 

States pre-existent and supreme; planned 
the Constitution and created the govern¬ 
ment, 144, 172, 285, 286, 392, 393. 

The national idea, 180. 

States not consolidated, 145, 194. 

As to the ratification of the Constitution, 167, 
169. 

The distribution of powers, 172-174. 

The several States as the “ United States,” 
12, 274. 

What, and exegesis clearly prove, 274. 

Distinguishes between law of being of the 
State and that of government, 288, 289. 




594 


INDEX. 


HISTORY, AMERICAN — continued. 

As to sovereignty, “ consent of the governed,” 
the commonwealths, federaliziug, etc., 294. 
And the supreme law clause, 181. 

The expounders invert, 219, 297. 

Shows a federation of sovereignties, 301. 

As to the federal pact, 346, 355, 360. 

State protection and preservation, 360. 

What our recent, suggests, 369. 

American citizenship in, 410. 

As to allegiance and treason, 421. 

HUME. Law of the State’s being [note, p. 18], 
285, 291. 

Consent of the governed, 291. 

The alleged explosion of the Social Compact 
[note, p. 18], 291. 

HUNTINGTON, GOV. The people are the 
government, 90. 

I. 

IMPERIALISM. Acts of, by the general gov¬ 
ernment, 155, 213. 

INNES, JAMES. Ratification the exercise of 
sovei’eiguty, 108, 111. 

INQUIRY. Is one of fact as to the govern¬ 
ment and the parties to it, 42. 
INTERPRETATION. Comes after establish¬ 
ment, 50, 166. 

Is of words, phrases, etc., not of the system, 
id., id. 

Pseudo schools of, 50, 51, 53. 

The making of the Union a matter of fact, 
not of, 50, 166. 

The “ school ” was one of perversion, not of, 
52,53. 

The perverters’ exegetical system, 53, 54, 
162, 163. 

Efforts of the “ school ” on leading questions, 
id. 

Examination of the so-called interpretations, 

165 et seq. 

The sophistical circle, 176. 

The subterfuge of, 50, 166, 369. 

The expounders’ screen of, 166. 

False evidence of establishment, 171 et seq. 
Disproved by the ratifications of the States, 
171, 172. 

And the constituting of the government, 172. 
The federal convention did not ordain, 172, 
173. 

The fiction as to a distribution of powers, 

173.174. 

That the States are not named in the pact, 

174.175. 

The “supreme law,” 176-178. 

Stultifying admissions, 178. 

The polity partly federal, partly national, 
178,180. 

Perversion of the phrase “ reserved to,” 181. 
Garbling the ratifications, 182 et seq. 

The obvious intent of such perversion, 183, 

184. 

The true versions, 183, 184. 

Garbling interpretation of “ the Federalist,” 

185, 186. 

Changing terms and meanings, 188 et seq. 
Irrevocable grants, consolidation, etc., “in¬ 
terpreted ” from the acts of ratification, 
188-190. 

Examination and refutation, 190 et seq. 
Misstating the views and acts of the federal 
convention, 196 et seq. 

“ Constitutional Compact ” and “ accede,” 
204-207. 

Outcome of the “ interpretations,” 215. 

What is done under pretence of, 220. 

Lessons to be noted, 220, 221, 269, 270. 


IREDELL, JUDGE. States sovereign in the 
Union, 47. 

The people make governments, 128, 129. 

And new model them at pleasure, 128, 389, 
390. 

Those in power servants and agents, id. 

The understanding as to ratification, id. 

The senate to preserve State Sovereignty, 
129, 390. 

Import of the supreme-law clause, 177. 

On usurpation and unconstitutional laws, id., 
380. 

That power which created the government 
can destroy it, 390. 

ISSUES OF FACT. The people, how politi¬ 
cally exist and act; their states, their 
character, attributes, and action, 332, 
333. 

The American polity in our history and 
records, 367-369. 

J. 

JACKSON, PRESIDENT. On the ties of 
Union, 67. 

Confounds delegating of powers with trans¬ 
fer of citizenship, 3<1, 397, 398, 402. 

On his duty under the Constitution,381. 

The proclamation against South Carolina, 
397. 398. 

JARVIS, DR. CHAS. Remarks in the Massa¬ 
chusetts convention, 83, 84. 

JAY, JOHN. The people govern, 10. 

On the proposed government, id., 43, 44, 92, 
93. 

A “ Union of States,” 93, 367. 

States adopted, id., id. 

The States acceded to the Union, 206. 

JEFFERSON, PRESIDENT. On the sedition 
law and his functions, 381. 

The States’ compliance with federal requisi¬ 
tions, 385. 

JOHNSON, DR. [of Conn.]. States have the 
right of self-defence, 388. 

JOHNSON, PRESIDENT. On the right to re¬ 
fuse obedience to lnws, 381. 

JOHNSTON, GOV. SAMUEL. Ratification op¬ 
tional, 130. 

Rights of the people and States assured, id. 

JUDICIARY, FEDERAL. Power of, is of the 
United States, 150. 

Creation of the States, existing by their will, 
385,386. 

Iv. 

KENT, CHAN. Sovereignty and lordship of 
the soil, 340. 

KEY-NOTE. Of the acts pf the States and ut¬ 
terances of the fathers, 414. 

KING. Change of personal, for a corporate, 
298, 299. 

KING, RUFUS. Federal laws must be laid on 
individuals, not States, 384. ^ 

L. 

LANSING, JOHN. Senators to represent the 
sovereignty of the States, 94. 

LAW, CHIEF'JUSTICE. The people are the 
government. 90. 

LAW, SUPREME. See under Supreme. 

LAWS. Why citizens of States obey the fede¬ 
ral, 75,125, 292, 383, 384. 

The law of the sovereign people, 323, 364. 

Of Congress, when not binding, 373, 380. 

Of refusal of obedience to, id., 380. 381. 

’ National, must operate on individuals, not 
States, 383, 384. 





* 


index/ 


595 


LEE, HENRY. Ratification was by States, 110. 

The people bound only by their own act, id. 

LEE, GEN. R. E. The principles justifying his 
action, 28-30, 36. 

Was taught secession as a matter of law at 
West Point, 32, 33. 

Opposed to the policy of secession, 38. 

His State seceding, deported him, 36, 37, 422. 

Violated no “ national” allegiance, id., id. 

LEGISLATURE, THE. And constitutional 
limitations, 243, 303. 

LIBERTY. The true principles declared by 
Massachusetts, 68, 69. 

The sober vigilance American, demands, 220, 

221 

LIBERTY INSTITUTIONAL. The citadel of 
American, 173. 

LIEBER, PROF. The social compact, 284. 

LINCOLN, PRESIDENT. Political ideas in 
inaugural, 12, 214. 

His emphasis of the “ Expounders’ ” views, 
132. 

His plain English of the “Expounders’” 
doctrines, 214 et seq. 

How far sinned against, and sinning, 214, 215. 

Examination of his “constitutional views,” 
215 et seq. 

“ A State no better than a county,” 215, 216. 

“ The word [sovereignty] not in the National 
Constitution,” 216, 217. 

[ His guesses and notions, 217, 297. 

States are the creations of the Union, 217, 
218. 

Have such status and rights as the Constitu¬ 
tion confers, 218, 219. 

Perverted views and ideas, 219. 

LINCOLNS, THE. Query for, as to the “Na¬ 
tional idea,” 273. 

LIVINGSTON, CHAN. All power is derived 
from the people, 10. 

Governments as deposits of power, 10, 11, 93. 

Federal laws must operate on individuals, 93. 

Our polity a league of States, id. 

LIVINGSTON, GOV. W. Advocated the plan 
of federation, 97. 

LORDSHIP OF THE SOIL. New York as¬ 
serts, 62, 63, 339, 340. 

And Virginia, 62, 340, 344. 

The American and republican idea, id., id. 

Massachusetts, 342, 343 ; Pennsylvania, 343, 
344; South Carolina, 344, 345 ; and the 
new States, 346. 

LOYALTY, TRUE. Defence of one’s State at 
her command, 34, 35, 394 et seq., 422. 

Important corollaries, 394. 

Emphatic testimony of the fathers, 395, 396. 

The whole theory of, summed up, 396. 

M. 

MACLAIN, ARCH. The Constitution a mere 

proposal, 130. 

The phras»“ we, the people,” id. 

MADISON, JAMES. The ultimate authority 
in the people alone, 11, 30, 108. 

Federal and State governments only agents 
and trustees, id., id., id. 

By “ the people” is meant 13 sovereignties, 
30, 31, 108, 309. 

Character of the Union, 43, 108, 309. 

Each State ratified as a sovereign, id., id. 

The character of the Constitution, 43, 178, 
179, 185. 

Powers reserved and those delegated, 311. 

A federal government, 202, 206. 

Coercion of States a dissolution of compacts, 
383. 

A federal government of coercive powers over 


MADISON, JAMES — continued. 

its members provides for its own destruc¬ 
tion, 383, 385. 

A State cannot be called into court, 386. 

States have absolute right of self-defence, 
392. 

Virginia bound only by her separate assent, 
id. 

Virginia may renounce the government, id. 

The militia for the defence of States, id. 

MAGISTRACIES, FREE. How perverted, 6, 
19, 69, 334, 431. 

MARIUS. Pretending to protect the people, 
subverts the polity, 21. 

MARSHALL, CHIEF JUSTICE. The people 
sovereign, 10, 108, 109, 365. 



Governments the people’s agents, id., id. 

The sovereign power in the Union is States, 
47, 108, 386. 

Holders of power servants of the people, 108, 
389. 

Governments depending on our free will, id., 
id. 

On the control of the militia, 392. 

Self-defence of States, 395, 396. 

MARTIN, LUTHER. Charges against the pro¬ 
posed new Union, 106, 160, 161. 

His impelling motive, 161. 

MARYLAND. Federalizes herself, 105. 

Vote ; Date, etc., id. 

Prompt action. Terms of ratification, 106. 

Luther Martin’s opposition, id. 

MASON, GEO. The sovereignty of State can¬ 
not be judicially proceeded against, 386. 

MASSACHUSETTS. A passing tribute to, 54, 
55, 162. 

On the social compact, sovereignty and gov- , 
eminent, 60, 61, 282, 410. 

Champion of State Sovereignty, 55, 61, 283, 

417, 418. 

The people, their substitutes and agents, id., 
310. 

Asserts her sovereignty, 61,342, 343, 410, 417, 

418. 

And right to change government at pleasure, 
id. 

Should again vindicate liberty, 68. 

Federalizes herself, 79. 

Date of ratification, id. 

Vote on ratification, id., 377. 

Debate in her ratifying convention, 80, 376, 
377 et seq. 

All her statesmen assert her sovereignty, 80 
et seq. 

All deny and denounce consolidation, id. 

Proposes the 10th amendment, 85, 86, 377. 

Ratifies, and thereby ordains the Constitu¬ 
tion , 88. 

“ We, the people,” means Massachusetts, 82, 
83. 

Ratifying and ordaining, words of, 88. 

When independent, became a nation, 275. 

Practical results of the modern theory, 280. 

Preamble to her Constitution, 282, 283, 289. 

Story’s garbled quotation, 289. 

All her citizens her subjects, 418. 

Asserts sovereignty over her soil, 342, 343. 

Pronounces acts of Congress in violation of 
the Constitution void, 380. 

Agitates for the adoption of the 11th amend¬ 
ment, 386, 387. 

Absolute over her citizen soldiery, 403-405. 

The ancient faith of, 391, 392. 

Political action in the Union. The old faith, 
despite the new works, 405-407. 

Citizenship, allegiance, and treason, 417,418. 



596 


INDEX. 


“MASSACHUSETTS SCHOOL.” Statement 
of doctrine, 12. 

Is not a school of interpretation, 52. 

“ School ” of perversion, id., 127, 170. 

Means flock, following a bell-wether, 53, 

173. 

Its sophistries on leading questions, 53, 54. 

Does not represent Massachusetts, 54, 55. 

Leading dogma repudiated, 126, 391, 392. 

What it seems to ignore, 127. 

Consolidation doctrine in brief, 142, 143. 

Examination of its leading dogmas, 165 et seq. 

“Consent” of the federal convention the 
basis of the Constitution, 172,173. 

Ratifying made the States a nation, 173. 

The blind leading the blind, 173, 174. 

The convictions wrought by their teachings, 

174. 

The “ school’s ” climax of interpretation, 176, 
177. 

Misstatements, sophistries, and self-over¬ 
reaching, 178. 

Uniform garbling of the ratifications, 182, 
183. 

The motive thereof, 183, 184. 

Ingenuity in quotation, 185, 186. , 

Perverting the ordinance of ratification, 188 
et seq. 

The “ school’s ” material interests, 211, 212. 

What interpretation masks, and the reasons 
why, 220. 

Verbal jugglery, 242 et seq. 

Practical results of the school’s ” teaching, 
280, 315, 316. 

Its teachings on sovereignty, 314, 315. 

Its teachings on State rights, 315, 316. 

McKEAN, JUSTICE. On the Pennsylvania 
convention, 169. 

, MILITIA. The State has the supreme right, 
coupled with the duty, to the control of, 
for her defence, 392, 394, 403. 

A startling proposition, 403 

The military force primarily contemplated, 
id. 

Massachusetts on the use and control of her 
citizen soldiery, 403 et seq. 

No federal authority over, but by consent of 
State, 403,404. 

The military subordinate to civil authority, 
404,405. 

MILL, J. S. The American Union, 332. 

MONTESQUIEU. Laws of suffrage fundamen¬ 
tal, 7, 17. 

The confederate republic, republic of repub¬ 
lics, 22, 332, 347. 

Description of a State, 65. 

His authority : Influence on the fathers, 347. 

On the republic and territorial area [note], 
349. 

MORRIS, GOUVERNEUR. The Constitution 
a compact between sovereign powers, 45, 
368. 

Worth of constitutional limitations, 243. 

The constitutional amendments, 387. 

MOTLEY, J. L. Asserts the States are not 
named in the Constitution, 175, 184, 185. 

Nine averments of, which the Constitution, 
the records of the country, and the ratifica¬ 
tions flatly contradict, 184, 185. 

N. 

NATION, THE. The only, is composed of 
States, 31, 32,179,197, 373. 

Of the “ Massachusetts school ” a figment, 
55, 126, 127, 156, 180, 297. 

How evolved by the expounders, 12, 52, 113, 
153,167,178,179,288 et seq. 


NATION, THE — continued. 

There were no citizens of a, 155, 156, 179. 

The convention did not represent a, 172. 

The quasi, of the States’ sovereign wills, 179, 
298, 414. 

The originals of the semblance, 414. 

Federal Instory exhibits no such creation, 144, 
180, 297, 352. 

“NATIONAL SOVEREIGNTY.” Cannot be 
enforced over States, 299, 330, 373. 

Precautions of the fathers, 299, 373, 376, 382 
et seq. 

NEW HAMPSHIRE. Federalizes herself, 122. 

Vote on ratification : Date, id. 

Unites as a sovereign State, 122. 

Declarations of sovereignty, rights of govern¬ 
ment, and subordination of government 
functionaries, 122, 123. 

Her ordaining words, 123. 

Ratification coupled wfith amendments, id. 

There being nine States “ parties to the com¬ 
pact,” the federal government is assured, 
124, 125. 

NEW JERSEY. Federalizes herself, 97. 

Date of ratification, id. ; vote on, id. 

Views of her statesmen, 97. 

“ We, the people,” means, 98. 

Ratifying and ordaining words, 99. 

How leagued, id. 

NEW YORK. On sovereignty, government, 
etc., 61, 62,96. 

Uncle Sam in, only for her defence, 63, 340, 
341. 

Sovereign of her domain, 62, 96, 338, 339, 340. 

The United States stand on her soil only by 
her grant, 63, 339. 

Terms on which federal sites are granted, 63, 
337,339. 

Federalizes herself, 92, 337, 338. 

Her statesmen on the proposed S3 - stem, 92- 

Date of ratification, 92. Vote, id. 

“ We, the people,” means, 95. 

“ The convention declares her “ understand¬ 
ing,” 94, 95. 

Ratifying and ordaining words, 95, 337. 

Ordinance carried by only three (3) votes, 
id., id. 

Ratifies the pact as a sovereign, id., id 

Sovereign over people and soil. 62, 96, 338. 

Records as sovereign ; Historical glance, 335 
et seq. 

Declarations of Hamilton, Jay and Living¬ 
ston, 92-94, 337, 338. 

Leagued in a confederacy of sovereign States, 
95, 338. 

Rights of citizens and the federal Constitu¬ 
tion, 338. 

The United States a party to the conditions 
of occupancy of federal sites, 341. 

Two capacities in w'hich the United States 
government is received, id. 

Cursory review, 342. * 

NORTH CAROLINA. Federalizes herself, 128 
et seq. 

The Constitution rejected, vote, id. 

Ratification. Vote, 128. 

The sovereign will clearly demonstrated, id.. 

131. 

The convention on the proposed federal sys¬ 
tem, 128-131. 

Refuses to adopt, and demands amendments, 
142. 143. 

Ratifies, amendments being assured, 131, 

132. 

Address to Washington on the Union of the 
States, 132. 

The President’s reply, 132,133. 





INDEX. 


597 


p. 

PACT, FEDERAL. The only parties to, are 
States, 29. 

Recognizes citizens as of States, 56, 288. 

The Constitution became, when ratified, 138. 

Testifies to a league of States, 148. 

Significance of its possessive phi'ases, id., 364. 

States ratify the, 168,169. 

Story’s admission as to source of vitality and 
validity, 184. 

Adoption of, not a new social compact, 288. 

Why the citizen is subject to, 292. 

And the sovereign wills of the States, 302, 
305, 357, 358. 

Designates the system and agency, 302. 

Only powers imparted to, 305. 

A created instrumentality, 320. 

As to ultimate arbiter, 357, 358. 

United States Supreme Court, on, 358, 359, 
363 (note). 

PALLADIUM. Of the citizen’s private and 
personal rights, 35, 378. 

PARSONS, THEOPHILUS. The government 
the result of a compact, 10,194. 

In delegating, the people divest themselves of 
nothing, 10, 194, 391. 

The Senate and sovereignty, 47. 

On sovereignty and consolidation, 81. 

An act of usurpation not obligatory, and not 

— law, 177, 380. 

State officers bound to oppose such acts, 380, 
391. 

Character of the federal government, 10, 194. 

The grand check upon federal usurpation, 
391. 

PATRIOTISM. Love of one’s State is, 34 et 
seq ., 395. 

That which the fathers felt and taught, 34, 
35, 395, 396. 

True, is fidelity to the commonwealth, 57, 
394. 

PATTERSON, WILLIAM. Federal Supreme 
Judge. The power of the convention of 
1787, 74. 

Member of the convention of States, 97. 

Opposed to consolidation; recognizes sove¬ 
reignty of States; federal polity acts on 
persons not States ; instructions to make a 
federal, not a national government, 74, 97, 
302. 

PENDLETON, CHAN. The people the foun¬ 
tain of all power, 10, 107, 108, 368. 

They must delegate power to agents, 10, 107, 
108, 366. 

The universal understanding as to federal¬ 
izing, 47, 107, 108, 279, 280. 

The State sovereign in the Union, 108,368. 

A consolidated government inadmissible, 110. 

State action in case of federal usurpation, 389. 

PENDLETON, GEO. II. Misconstruing the 
pact, 174, 315. 

PENNSYLVANIA. Federalizes herself, 100. 

Date of ratification, id. Vote, id. 

Her sovereign right to accept or reject. 
[McKean,] 102, 103. 

Associates as a sovereign, 100, 101. 

Coxe and Wilson on ratifying the federal 
compact, 100, 102. 

Ordaining words, 103. 

Origin of, 276. 

From province to State, 276, 277, 292. 

Authority of the people, 277, 278. 

State or nation completed, 278, 292. 

Declaration of rights, 278, 289. 

No line alienating her sovereignty, 279. 

Powers delegated, id. 

The will and work of all her people, 279 


PENNSYLVANIA— continued. 

How she confederated, id.. 292. 

Social compact of, 281, 282. 

Facts in her political history, 288, 289. 

Lordship of the soil, 343, 344. 

Her grants of federal sites and jurisdiction, 
id. 

PEOPLE, THE All political power is inherent 
in, 10, 63, 82, 83. 

Govern through representatives, 10, 11. 

Divest themselves of nothing, 10, 11. 

The sovereign power resides in, and never 
leaves, 11, 63, 101. 

Governments the agencies of, 10, 191, 309, 

373. 

“As composing thirteen sovereignties,” 11, 
108. 

Are the States and the States the people, 11, 
60,61, 145,373. 

As collective body called the State, 349. 

What, have achieved as States, 429. 

Govern the people, 296, 297. Illustration, 
297. 

Averments of fact in regard to, 55. 

Their representatives are their servants, 11, 
12, 109, 145. 

Give power and can take it back, 11,109. 

Erect what governments they please, 10, 11, 

374. 

The fathers on, 9-11, 308, 309. 

Govern themselves absolutely, 37, 63, 64. 

Sovereignty in, as organized societies, 37,192, 
296,322. 

As sovereign States, 37, 82, 83, 145, 273. 

“ We, the people, means the people as or¬ 
ganized bodies politic,” 60 , 61, 63 , 82, 83, 
87. 

“ We the people of the United States,” 45,53, 
147, 148, 168. 

Politically exist and act only as States, 55, 
155,156,176, 301, 322, 374. 

Survival and function of their will, 73, 302. 

Ordained only as States, 77, 136, 153, 154, 
1(38, 176, 183. 

Have parted with only delegated powers, 145, 
191 et seq., 302. 

As commonwealths distributed powers, 181. 

Status and action as States, 136, 322, 328, 
373, 374. 

As sovereign commonwealths and as subjects, 
179, 297. 

Are the real government, 191. 

As organized have unlimited power of amend¬ 
ment and repeal, 192. 

Subjected according to the formula of the 
school, 397. 

Superior to constitutions, 303. 

Have always amended, 325, 326. 

Recognition of, as sovereign States, 332. 

Questions Americans cannot evade, 369. 

Alone are sovereign, 374. 

“ The supreme sovereignty of,” 390. 

PERVERSION. How far carried by “ the gov¬ 
ernment,” 9. 

Leading tenets, 12. 

The motives with the promoters of, 164,184, 
211 . 

Theory of, how built up, 181, 185, 186, 196, 
197, 213, 214. Expose, 41, 42. 

PERVERTERS. The most dangerous, 428. 

PHILADELPHIA CONVENTION. Proclaims 
“ the absolute supremacy of the national 
government,” 12, 300. 

Admission touching the war and the union 
of States, 331. 

PINCKNEY, CHARLES. All power is from 
the people ; rulers their responsible ser¬ 
vants, 115. 




598 


INDEX. 


PINCKNEY, CHARLES — continued. 

The States equal sovereigns ; their authority 
absolute and uncontrollable, 116. 

The system a federal republic, States the 
pillars of the government, 116. 

The character of, and pleas for Union, id. 

PINCKNEY, C. C. Location of the sovereignty, 

10 . 

States the parties to the government, 117, 
118. 

States confederate on equal terms, 118. 

The government founded on equal compact 
between States, id. 

Only expressly delegated powers in the gov¬ 
ernment, 10,118. 

All reserved are with the States, id., id. 

Question of the individual sovereignty of the 
States, 118, 119. 

POLITICAL PHILOSOPHERS. Testimony to 
the federative character of our system, 
332,347. 

POLITICIANS. Panderings and perversions, 
162, 322. 

Unprincipled partisanship, 165. 

Absurdities regarding sovereignty, 306, 307. 

False teachings at second-hand, 318. 

POLITY, THE AMERICAN. According to the 
expounders, 178, 179, 184. 

The true, is government of States by them¬ 
selves, jointly in general, severally in do¬ 
mestic affairs, 180, 293, 394, 395, 414. 

According to the writers of the Federalist, 
186. 

Essential idea of, 191. 

Exposition by James Wilson, 303. 

Of the rising States, 350, 351. 

Main object of the federal, 359, 360. 

Is a federation, 180. 

What founded on, 361. 

Symbolized, 365 , 366. 

As described by the founders, 367, 368 

As “ expounded ” by the sons, 368. 

Summary : general issue, 368, 369. 

The States and people are, 374. 

Rests on sacred international faith, 379, 427- 

POWER. What is a, in a procuration, com¬ 
pact, etc., 302 (note). 

The sovereign, resides with the people, 10, 
11, 303, 328, 329, 374. 

The people are the fountain of all, 10, 306. 

The, under the Constitution always in the 
people, 11. 

The dissolving as well as constituent, belongs 
to the people, 73, 302, 330,389. 

The use of undelegated, by the federal gov¬ 
ernment, 376, 377. 

Delegations of, by the States in the Union 
may be withdrawn, 377,388 et seq. 

Pretence of a restraining, over States, 360, 
361. 

Of encroachment on reserved, in a republic, 
376. 

When, constrains a State, freedom is gone, 
382. 

No, of restraint or constraint given the fede¬ 
ral government, 384. 

The rightful central, 429. 

POWERS. Alleged distribution of, 42,172. 

All, not delegated are reserved, 85 et sen., 172, 
181, 191, 192 note, 379. 

All federal, derivative and remain such, 150, 
379. 

Distribution of, by the States, 181. 

Alone delegated, 191, 302. 

Grants of, subject to recall, 192, 364, 389. 

“Delegated powers,” “political grants,” 
“ powers of government,” vs. sovereignty, 
192, 216, 217, 316, 341. 


POWERS — continued. 

“ Sovereign powers,” the sense in which the 
fathers used the expression, 223, 224, 317, 
318. 

And rights are not sovereignty, 306, 307. 

The State’s repository of: Those delegated 
and those reserved, 310. 

Illustration and corollaries, with authorities, 
310, 311. 

Delegated to the United States, 364. 

Federal abuse of delegated, 312,373, 380 et seq. 

Federal, delegated for defence not attack of 
States, 382, 384. 

Perverted, may be withdrawn, 389. 

PREAMBLE, THE. And title show a union of 
distinct commonwealths, 148, 168. 

And Article VII. prove States sole parties to 
the compact, 153, 154. 

Action of the federal convention on, 201, 

202 . 

And Article VII. — true rendering of, 322. 

PRINGLE, J. J. Redress in case of unconsti¬ 
tutional treaties, 119. 

PROVINCIALIZED. The States, according to 
the “school,” 12. 162, 280, 293. 

An indissoluble union means States, 155,357. 

Government “ supremacy ” relegates States 
to their provincial condition, 361. 

A suggestion, 369, 370. 

PUBLICISTS, THE. On sovereignty, 7, 306. 

On the federal republic, 332, 347. 


R. 


RANDOLPH, GOV The Government a crea¬ 
tion of the States, 109, 396. 

Right to coerce States, most absurd and 
ridiculous of all doctrines, 396. 

On the accession of Virginia, 111. 

Plan of government submitted, in federal 
convention, 198. 

Coercion ought not to be directed against a 
State, 383. 

Federal laws to operate on individuals, not 
States, 383, 384. 

The State governments and federal usurpa¬ 
tion, 392. 

RATIFICATION. Done by States to federalize 
themselves, 77, 136,167, 169. 

Was adoption — the only acts ordaining and 
establishing the Constitution and govern¬ 
ment, 81,124-126,140, 154, 169, 204, 205, 

285, 286. 

Done in State conventions, each free to re¬ 
ject or adopt, 77, 136, 154, 167 et seq., 172, 

286. 

The act of Massachusetts, 88 ; of Connecticut, 
90, 91; of New York, 95 ; of New Jersey, 
99; of Pennsylvania, 103; of Delaware, 
104, 105; of Maryland, 106; of Virginia, 
111, 112 ; of South Carolina, 120, 189; of 
Georgia, 121; of New Hampshire, 123 ; of 
North Carolina, 132, and of Rhode Island, 
134. 


Ordinances of, received by Congress as proof 
of the establishment of the compact, 126, 
127. 


On receiving nine acts of, Congress declared 
Constitution completed, id., 364. 
Pretended, of the Constitution, 142,143,172, 
1 1 3 . 

Of constitutional amendments provided for, 
152. 


What such provision necessitates, id., 325. 
Sufficed for establishing, 167. 

Was by States only, 167, 169, 172,189,190. 
The people never voted on, 170. 

Garbling the ordinances of, 182 et seq. 




INDEX. 


599 


RATIFICATION — continued. 

Ordinances of, show States only possible 
creators and delegators, 184. 

Exposition, with criticism of the consolida¬ 
tion view, 188 et seq. 

The instrument of, was an ordinance, not a 
deed or grant, 189. 

The ordinances of, only delegate powers for 
self-government, 190,191. 

Power of enactment, and that of repeal com¬ 
mensurate, 188,192, 357. 

Has not “ operated to pass something,” 193, 
194. 

The assenting phrases of the ordinances, 191, 
192, 204, 205. 

Used in the sense of acceding to, 205, 206. 

Of the first ten amendments, 326, 327. 

Of the 11th and 12th amendments, 327. 

Of the later amendments, id. 

Barely carried in several States, such the ap¬ 
prehension of consolidation, 377. 

Of the Constitution involved no transfer of 
allegiance, 416, 417. 

Vote of New York was in confidence of 
amendments, 94. 

Declaration of New York on ratifying, id. 

Declaration of V irginia, 112. 

Is the exercise of sovereignty, 108. 

Was by the people as organized societies, or 
commonwealths, 127, 143, 172, 294, 297, 
300,325. 

RAWLE, W. On secession, 33. 

REBELLION. “ Rebellion or not ? ” A con¬ 
sideration of the question, Were the con¬ 
federates rebels and traitors, chaps. V., 
VI., pp. 28-40. 

REPUBLIC. Government in, not sovereign, 
32, 53, 54,283. 

Suffrage the exercise of sovereignty in, 7. 

Laws regulating suffrage fundamental to, 7, 
17. 

Averments of facts as to, 55, 56. 

Sole cohesive force of the, 56. 

A society of people for self-government, 55, 
127, 411, 412. 

Principle it is founded on, 281. 

God’s form of polity, id. 

Right of expatriation vital to, 282. 

Exists by the social compact, 283. 

Law of being of, 288. 

The germ of, 292. 

Our federal, exists through the States, 331. 

Government in a, not object of treason or al¬ 
legiance, 339. 

Government of, is the State itself, 365.— 

Encroachment on reserved powers, insidious, 
376. 

REPUBLICS. The basis of all, 352. 

“ REPUBLIC OF REPUBLICS.” Propositions, 
56. 

Established by the federal compact, 186. 

The growth of our, 348. 

A society of commonwealths, 184. 

Vattel and Montesquieu on, 22, 298, 332, 347. 

“ REPUBLICAN FORM OF GOVERNMENT.” 
The understanding of the fathers, 255 
et seq. 

And Art. II., first federal Constitution, 359. 

The form vs. the substance [359, note]. 

Obvious meaning, 152 (note). 

REPUBLICANISM. Germinal idea of all, 348. 

Exhibit of our representative, 29. 

RHODE ISLAND And federalizing, 134 et seq. 

Constitution rejected on popular vote, 134. 

Adopted in convention, amendments being 
assured, id. 

The votes, the dates, id. 

Washington on her accession, 134,135. 


RHODE ISLAND — continued. 

She crowns the union of sovereign States, 135. 

Asserts her sovereignty, freedom and inde¬ 
pendence in the Union, 135,136. 

From the Revolution was absolute sovereign, 
134,135, 328. 

Declares unconstitutional acts of Congress, 
void, 380. 

RIGHTS, BiLL OF. See Bill of. 

ROUSSEAU, J. J. The republican social com¬ 
pact, 285. 

The State, id. 

s. 

SCHOFIELD, GEN. The army the safety of 
the republic, 13. 

SECESSION. A chapter on, and coercion, 22. 

The formal act of, 37, 38. 

Was by States, not persons, 23. 36 

Rightful though impolitic, 24, 25. 

Right of, inherent and inalienable, 27 [Note, 
Professor Bledsoe on secession, id.], 267, 
268. 

Not inconsistent with the Constitution, 23, 
24, 27, 423, 444. 

And the jus gentium, 24, 26, 422. 

Right of, and State sovereignty taken for 
granted, 27, 32, 391, 389-391. 

Errors regarding, 267 et seq. 

No question as to right, for 40 years, 32. 

St. George Tucker and Wm. Rawle on, 32, 
33. 

Uncle Sam taught Davis and Lee, id. 

Will, act, and criminal intent required to 
make crime, 36. 

How declared, 37, 38. 

The whole argument against, dissipated, 95, 
301, 302. 

The power to dissolve commensurate with the 
ordaining, 188, 330, 357, 361, 389 et seq. 

And nullification — distinction, 261, 262. 

Conservative mistakes, 267 et seq. [note, p. 
358]. 

Right of, taken for granted by the fathers, 
27 , 33 , 389-391. 

The act of, and the right thereof, 267, 268. 

There can be no forfeiture of the right of, 
268. 

Conservative influence of the admitted right, 

id. 

The late, too precipitate, 268. 

Right to abolish or repeal involved in that to 
amend, 286,326, 357, 358, 376. 

Not prohibited by the recent amendments, 
423. 

The right spurned, or condemned now, 268. 

[Note, p 358]. 

Fallacies of certain political clerics, 290. 

Right of, conceded, 330,389 et seq. 

Powers granted may be resumed, 389-393. 

Right of, is above the Constitution, 389, 423. 

The people may new-model or destroy the 
government, 409. 

Naturally States can undo what they do, 423. 

Political philosophy of the right, 423. 

The higher moral considerations involved in 
the claim of the right, 423, 424. 

SELF-DEFENCE. Of States, Fathers held 
right of, unlimited in the Union: How 
asserted, 388. 

The States the highest authority on the right 
and mode of, 388, 408, 409. 

What the fathers say : Dr. Johnson, of Con¬ 
necticut, 388; Ellsworth, 388, 396; Mar¬ 
shall, 389, 391, 395, 396; Chan. Pendleton, 
389 ; Madison, 389, 392 ; Iredell, 389, 390 ; 
Roger Sherman, 390; Dickinson, id. ; James 
Wilson, 390, 391; Samuel Stillman, 391; 



600 


INDEX. 


SELF-DEFENCE — continued. 

Judge Parsons, id .; Ames, id .; Gov. Ran¬ 
dolph, 392; Hamilton, 392, 393. 

Last reasoning of the States, 393. 

The militia for, 392, 394, 402 et seq. 

SELF-GOVERNMENT. Of Scales is the Ameri¬ 
can polity, 65, 66,127,144 [Diagram], 147, 
292, 299. 

Alone distinguishes i. State from a province, 
65, 127, 155. / 

Federal, exercised by the States through the 
general government, 125, 147, 373-375. 

Intact right of, is the States’ sovereignty, 
127. 

Right of, not impaired by the delegating of 
power, 127, 281, 411, 412. 

An indissoluble union of States fatal to, 155. 

Only divine right of government is, 281, 286, 
408. 

Capacity for and right to, 281, 286, 347. 

Is exercised functionally, 286, 411, 412. 

And society are separate ideas, 289,290. 

The republican idea, symbolized, 294, 295, 
296, 297, 355, 366 

And the commonwealth, 348. 

In States, or bodies-politic, federating, id. 

Of man the foundation of the American 
polity, 348, 361. 

Responsibility for the use of, is in individu¬ 
als, id., 380, 381. 

Rights and responsibilities of, 408. 

Possible only in the collective form, 409. 

Of man the germinal idea of all republican¬ 
ism, 348, 408. 

SENATE, THE. Represents the sovereignty 
of the States: Senators partake of the 
quality of ambassadors, 81, 82, 238, 367, 
389, 390. 

SETTLER. Status and rights of, in the terri¬ 
tories, 353. 

SEWARD, W. IL. His threat to keep the peace 
for States, 14. 

His little bell, id. 

Basis of our federal republic, 65, 331. 

Absolute existence of the States, id. 

No power to coerce States, 178. 

SHERMAN, ROGER. The government insti¬ 
tuted by sovereign States, 46, 47, 89. 

Government the offspring of, and subject to, 
the will of the people, 89, 390. 

SHERMAN, GEN. W. T. The army and “ the 
government in fact,” 13, 14. 

SOCIAL COMPACT. See Compact, Social. 

SOCIETY. In the republican form of govern¬ 
ment, governs itself, 266, 275, 281. 

Object of, 281, 408. 

Monarchical and republican, 281. 

Of people vs. society of States, 282. 

People in, constitute the body politic, id. 

Actual conditions of existence of, 283, 284. 

Functions of organized, 284 

What causes society, 286, 408. 

The constituting of, vs. constituting govern¬ 
ment, 288, 289. 

Exists by consent, 290, 291, 294. 

And its self-government separate ideas, 289, 
290. 

As sovereign, 298. 

Republican political, 408. 

The State the only political, of the American 
people, id. 

The, called the commonwealth, how formed 
and governed, 348 , 409. 

Sovereignty of organized, — how it manifests 
itself, 301, 302. 

The authority for ordering its political con¬ 
ditions, 328, 329. 

Our only monarch for allegiance is, 414. 


SOCIETIES. Self-government of, constitutes 
the American polity, 292, 293, 347. 

Are sovereign, 294 et seq. 

Of people ratify, 300. 

An assemblage of. confederating, 347, 348. 

SOPHISTS, POLITICAL. Self-stultification, 
331. 

SOUTH CAROLINA. Federalizes herself, 115. 

Date of ratification, vote, 124. 

Strong opposition and much discussion, 115 
et seq. 

The new system as explained by its chief sup¬ 
porters, 115-119. 

A convention called to ratify or reject, 119, 

120 . 

Ordaining words of the ratification, 120. 

Amendments demanded, 120, 121. 

Expose of Mr. Curtis’s fallacy concerning the 
ratification of, 188 et seq. 

SOVEREIGN, CORPORATE. The general gov¬ 
ernment, by perversion, has become a, 12, 
197. 

SOVEREIGN MIND Olt WILL. Of the State 
survived to amend, 57, 58, 73,147,152, 305. 

Attributes and functions of, 28, 285, 294, 308, 
324. 

Where dwells, 152, 285, 294, 308, 324. 

How manifested in our republican govern¬ 
ment, 2i*4, 295. 

Of the State, and the federal pact, 301, 302, 
305, 357, 358. 

“ SOVEREIGN POWERS.” Incorrect phrases 
of the expounders, 306, 307, 314-316. 

No. in the Constitution, 305, 310 et seq., 314, 
315, 316, 317, 324. 

An excusable misnomer of the fathers, 317, 
818 

SOVEREIGNTY. American, when and how 
originating, 3, 4, 73, 276 et seq., 328, 329, 
335, 336. 

Distinguishes a State from a colony, province, 
etc., 3,127, 215, 216, 292, 319, 335. 

Of the States acknowledged by England, 4, 

328. 

Asserted by each State and guaranteed by all, 
4, 142, 148, 151, 152, 258, 259, 359, 377, 
388. 

Declared, eo noynine, to be in the States, 31, 
142, 217. 

A unit and indivisible, 3, 305, 306, 308 et seq. 

Does not consist of powers or rights, 3, 147, 
192 [and note], 216. 

Inherent in the people as organized societies, 
10, 11, 273, 294, 307, 374, 390. 

Dwells in the societies after as well as before, 
making constitutions, 10, 11, 127, 190, 191, 

329, 374, 390. 

Governmental, in a republic a solecism, 324. 

The government from agency has become a 
corporate, 12, 197, 215. 

Right of secession natural, and involved in 
State, 32, 391. 

No question for forty years of, State, and the 
included right of secession, 32, 33. 

Seat of, according to the fathers, 10, 11, 42- 
48. 

No exercise of, in a democracy but by suf¬ 
frage, 7. 17. 

Is essentially a predominating force, 4, 147. 

Not caused by declarations or acknowledg¬ 
ments, etc., 3, 216, 217. 

Of England remains at home, but sends 
agents everywhere, 3, 306 

Absurd views of, 36 , 37, 192, 193, 299, 314 
el seq. 

In “ the government” no such thing as, 11, 
63, 64, 238, 247, 273, 324, 333. 

Predicable only of organization, 37,147. 




INDEX. 


601 


SOVEREIGNTY — continued. 

Of the States and the tenth amendment, 46, 
86, 377-379. 

Cannot be predicated of government in a 
republic, 37, 53, 54, 283, 324. 

Solecistic absurdities, 37, 307, 308. 

Of the States, and the second article first fed¬ 
eral Constitution, 46, 86, 142. 

Ratifying, the exercise of State, 108. 

What is meant by, 127, 283, 305-308 , 319 
et seq. 

Is inalienable and indivisible, 142, 147, 193, 

307. 

How and when, of State lost, 142, 216, 286, 
328 329 330. 

Vs. government, 142, 192, 283, 306 [note, p. 
192]. 

States the real, 147, 302, 305, 330, 331. 

Is above and beyond government, 147, 216, 
217, 299. 

Exercise of its rights of government is func¬ 
tional, 147, 306, 309, 310 et seq. 

Not to be confounded with the powers of 
government, 147, 192, 283, 305, 306. 

Alleged ceding of a part of, 192 et seq., 307, 

308. 

Is not diminished by delegating powers, 4, 
191, 192, 194, 195,310-312. 

Not dependent on compacts, 4, 216, 217. 

In the incorrect sense of government, 224, 
283. 

Guaranty of, to each State, 258, 259, 359. 

Cannot be subjected to its own delegations, 
295, 296, 310 et seq. 

Supreme, and always the same, 298. 

No, in the Constitution, 147 , 301, 302, 305, 
324. 

Society’s, its sway, adjuncts, etc., 308. 

Divided [Illustration], 308, 309. 

Not transferred, testimony of the fathers, 317, 
318. 

Not subject to reservation, 319-322. 

Mr. Curtis’s admissions, 328, 329. 

When lost by the State? Points that must 
be met in the inquiry, 330. 

States have exclusive possession of, 209, 210, 
330 331. 

Of the soil, 62, 63, 338-340, 342 et seq. 

That alleged “ understanding ” as to, 336. 

“The independent, of their respective 
States,” 238. 

States held together by a central, according 
to the “Nationalists,” 144, 197. 

In the new States: See New States. 

SPA1GIIT, R. D. On the powers and work of 
the federal convention, 130,131, 225. 

The Constitution a mere proposal, id., id. 

The new system federal, adhesion voluntary, 
id., id. 

SPENCER, JUDGE. Federal laws must oper¬ 
ate on individuals, not States, 384. 

Coercion of States destruction of the govern¬ 
ment, id. 

SQUATTER SOVEREIGNTY. The fallacy of, 
322. 

Its absurd pretension, 353. 

STATE. “ What constitutes a,” 348. 

The word as applied in the Constitution, 
149, 169, 354. 

As distinguished from a colony, province, etc., 
3, 65, 215, 216, 332, 333. 

Is the citizens thereof, 28, 29, 394, 397 et seq. 

Formed by the social compact, 28, 275, 282, 
283. 

Sole object of treason, 30 , 394, 413 et seq. 

Sole object of patriotism, 34, 35, 395, 396. 

The fathers on love of one’s, 35, 36, 395, 
396. 


STATE — continued. 

The word was convertible with State govern¬ 
ment, 181, 247. 

The genesis of a, 273 et seq., 278. 

Meaning of, in the American polity, 24, 73, 
149, 169, 170. 

Or nation, 65,149, 169, 279 

Each American, had every characteristic of a 
nation, 284. 

Continued existence of the, 149,152,286, 325, 
328. 

Acts functionally and voluntarily, 73, 286, 
300. 

Self-preservation a duty of the, 257, 258, 
355 et seq., 394, 408, 409. 

Rules in all things, 292. 

Grades of authority in, 294, 295, 300, 301. 

Source of all authority, 301. 

The alleged loss of sovereignty, 169, 300, 328 
et seq., 330. 

The word as applied by the fathers, 149, 169, 
333. 

Is the ultimate arbiter, 355 et seq. 

Right of self-defence, 355 et seq., 394, 408, 
409. 

Duties of the, under reciprocal relations, 
357. 

The political suicide of a, id., 416, 417. 

When tederal agency may enter a, vi et 
armis, 360. 

Endows her members with suffrage, 29. 

May command the armed defence of her citi¬ 
zens, 373, 394, 403 et seq. 

Is the palladium of private and personal 
rights, 87. 

Cannot be coerced even judicially, 385, 386. 

And the federal judicial powers : the eleventh 
amendment, 386, 387. 

The government of a, stands between public 
liberty and federal encroachment, 391-393. 

Has original and supreme control of her 
militia, 394, 403 et seq. 

Defending one’s, is self-defence, 394 , 408, 
409. 

The American, status, political action, at¬ 
tributes and prerogatives, 408, 409. 

Federal jurisdiction in, and legal force of the 
treason-clause flow from her sovereignty, 
415. 

The, and citizenship, allegiance and treason, 
the early faith regarding, 419 420. 

Makes and unmakes the offence of treason, 
422, 423. 

Withdrawal, the natural action of an un¬ 
chained, 423. 

Withdrawal is, as to a State, the natural and 
functional act of a free being, 423, 424. 

The, and sovereignty, secession, coercion, 
federalization, the Constitution and the 
Union. [See under those respective heads.] 
STATEHOOD. To remain intact, 74. 

Massachusetts, fear of losing, 85, 86. 
STATES. 1 ‘ Free, sovereign, and independent, ’ ’ 
4,61,132,135, 273. 

Sovereign American, from British colonies, 
3, 4, 73, 328,329. 

Regarded as the sole source of power by the 
Constitution, 22, 75,126,137-139, 140, 147 
et seq., 152, 153. 

Senators, representatives, and president 
chosen by, 22,126,149, 150, 179,180. 

No constitutional coercion of, 23, 178, 309, 
373, 382 et seq. 

Equal and voluntary, joined in federal league, 
23,136,140, 148, 155, 156. 286, 297, 300. 

Constitution making, seceding and warring 
were by, 23. 

Sophistry of not coercing, but persons, id. 



602 


INDEX. 


STATES — continued. 

No distinction in the Constitution between 
foreign and domestic, 24, 149. 

The southern, in seceding exercised an indis¬ 
putable right, 24. 

The southern, fought for independence, the 
northern for empire, id. 

The northern, coerced the southern back un¬ 
der they'ws gentium , 24, 25. 

Unpleaded pleas of the coercing, 25. 

The principle established that seceding, may 
be coerced back, 28. 

Secession and war not by citizens, but by, 28, 
29. 

Make voters as means of ascertaining the 
collective will, 29,238. 

Suffrage exclusively given and controlled by, 
29, 155. 

The ultimate authority for the citizens to 
obey, 30. 

Treason a crime against, id. 

Coercion of, is war, 31, 75 , 383 et seq. 

The only nation is composed of, 31, 32, 179, 
297, 414. 

Alone responsible for secession and war, 37. 
Alone punishable, 39, 40. 

Severalty and sovereignty of, recognized, 45- 
48, 82, 153, 350, 357, 358. 

Alone delegate and reserve, 54, 155, 181. 
Alone amend, 57, 147, 152, 325. 

The people politically exist and act only as, 
61, 65,145, 155, 156. 

They are the people, and the people the, 61, 
145, 155, 156, 176. 

The, always above government, 61 et seq., 
127, 153, 176, 299, 373. 

Only by their will is the Constitution law in, 
64, 77, 150, 154, 155. 

A clear conception of the, 65, 66, 286. 

As distinguished from provinces and coun¬ 
ties, 65, 66, 127, 292, 332, 333. 

Motives of, in establishing the Union, 73, 
136, 145, 146 et seq. 

Are distinct entities, 73, 145, 286, 335, 

336. 

Are so many republics, 127, 136, 275, 297. 

To remain intact, 74, 127, 136, 147, 151, 152, 
169, 325. 

The chief aims of, in federating, 75 , 76,136, 
355. 

The principal changes in the federal polity 
contemplated by the, 86. 

Federalized, not nationalized, themselves, 76, 

144, 300. 

Gave existence to the government and feder¬ 
alized themselves, 76, 77,127,168,169,292, 
293, 362. 

Are sovereigns in the Union, 127, 142, 147, 
151, 305, 325 et seq., 335, 342. 

Ordained the Constitution and gave the gov¬ 
ernment its being, 127, 136, 137, 140, 144, 
145 [Illustration], 385, 386 [Illustration], 
Government by, jointly and severally, 127, 
147, 289, 304, 365. 

Proof of their continued sovereignty, 86,142, 
147, 152, 285, 297, 328 et seq., 374. 

Did not commit suicide, 127, 149, 216, 317. 
Their constituting the general government 
was a functional act, 136, 285, 286, 306, 
322, 323. 

Are the real sovereignty and government, 
142,147, 194, 195, 299, 414. 

No evidence of their consolidation, or change, 

145, 149, 156, 169, 179, 194, 329, 330. 

Have absolute right of self government, 63, 

73. 127,133,147, 281, 286, 293. 

Assert and hold lordship of the soil, 62, 63, 

337, 338-340,342 et seq. 


STATES — continued. 

Pre-existent and supreme, 42,142,149, 154, 
169, 328, 416. 

All elections and powers are of, 149,150, 179, 
180. 

The restrictions on, 154, 172. 

Are named in the Constitution, 174, 175- 

The same sovereign, federalized that com¬ 
posed the confederation, 112,142,144, 152, 
153, 169 

Did not subject themselves, but their citi¬ 
zens, to the supreme law, 125, 176-178, 383 
et seq. 

As parties to a constitutional compact, ac¬ 
ceded to it severally, 204 et seq. 

Sovereignty of, is above the Constitution, 
147, 216, 217. 

Webster’s concession and Massachusetts’s 
stand, 275, 279, 286, 330, 331. 

Voice of American History regarding, 286, 
292-294,355. 

The united, are the government, 294, 299, 
373-375. 

“ National sovereignty” cannot be enforced 
upon, 299, 360, 361. 

Respective action of, upon State and federal 
constitutions, 300, 301 [Illustration]. 

“Expounders’” “limited sovereignty” of 
the, 314-316 et seq. 

Are sovereigns yet: established facts, 325, 
326. 

Equal sovereigns in convention of 1787, 328. 

Claim sovereignty, independence, and free¬ 
dom, 216, 217, 330, 333. 

The absolute existence of the, constitute the 
republic, 331. 

_The, alone have inherent rights and original 

sovereignty, 333, 355. 

What the fathers assumed of, and aimed to 
secure for, 355, 376, 377, 385, 393, 395, 396, 

414. 

Guaranty of all to protect each, 359, 360, 

415. 

Right of self-defence, 355, 358, 373, 388 et seq. 

Are the people and polity, 292, 293, 373-375, 
414. 

Self-defence vital to small, 384. 

Jurisdiction of suits between, and by indi¬ 
viduals against, 485-487. 

The fathers on self-defence of, 338 et seq. 

Are the people the nation and the govern¬ 
ment, 414. 

Articles of the early faith regarding, 419, 420. 

Can undo what they do, 423. 

STATES, THE NEW. Northwestern admitted 
with “ same rights of sovereignty, freedom, 
and independence with the other States,” 
217, 333. 

Sovereignty in the [other], 347 et seq. 

Origin, growth, and increase of, 347-349. 

Absolutely equal with the old, 346, 348 et seq. 

Formation of: Rationale, 348, 349, 352, 353. 

The constitutional provision for the admis¬ 
sion of: evident intent, 151, 152, 354. 

Status and rights of a settler in the nascent, 
353. 

Whence arises the sovereignty of, 217, 333, 
353, 354. 

The colonies as rising, 3, 4, 349, 350 : their 
severalty and different forms of polity, 3, 4, 
349-351. 

STEPHENS, ALEX. H. Ilis “War between 
the States.” Note, p. 77 

Confused notions of powers and sovereignty, 
id., 306, 307, 314, 315, 319-322. 

On the subjection of the States to their own 
“supreme law-making” power, 295, 299, 
319 et seq. 







INDEX. 


603 


STEPHENS, ALEX. H. — continued. 

On Webster’s qualified State sovereignty, 314. 
315,319. ’ 

His view of sovereignty at variance with his 
general theory, 318, 319. 

STILLMAN, SAMUEL. Remarks in the Massa¬ 
chusetts convention on the constitution 
Congress, 84, 391. 

STORY, JUSTICE. One of the founders of the 
“ Massachusetts school,” 16. 

As an expounder, 52, 162. 

His one-sided authorities and quotations, 88, 
162-164. 

On the “ powers granted under the Constitu¬ 
tion,” 112,113. 

The phrase, “ the more perfect Union,” 144. 

Interpreting Article VI., 152, 153. 

Mangled quotation, and delusive argument, 
173,182, 183, 185, 197, 199, 289. 

Succeeded Dane as head-master of the Mas¬ 
sachusetts school, 162. 

His theory of the Constitution based on the 
ancient false charges, 163,164. 

Ignored the refutation of those charges, id., 
id. 

Possible reasons for his centralizing expound¬ 
ings, 164. 

The Constitution not a compact; the people 
made a Constitution, not a confederation, 
167, 168, 280 et seq., 313,314. 

Historical facts ignored, 167-169. 

The apparent motives thereof, 170. 

His “ New Article,” 172,173. 

Garbling of the ratifications, 182. 

Obvious purpose of the garbling, 184. 

A broad admission, 184. 

Gross garbling of the Federalist, 185. 

Exposure of the artifice, id. 

“ National ” and “ supreme ” resting on false 
quotation of records, 197-200. 

The nation or State, 279. 

Alleged second social compact, and forming 
of the nation, 288, 289 et seq. 

Subterfuge as to the social compact of the 
Constitution, 289. 

Each state sovereign except, etc., 313, 314 et 
seq. 

SUFFRAGE. Control of, by the people vital to 
liberty, 7,17, 18. 

Character and purpose of, 7, 29. 

Montesquieu on, id. 

Original, in the people composing society, 7, 
29. 

Derivative, in those endowed by the society’s 
constitution of government, 7,29. 

Usurped control of, 17,.18. 

Is exclusively with the States, 29, 149, 150 
SULLIVAN, GOV. Government and coercive 
powers, 295. 

Leads the agitation for the adoption of 
amendment XI., 386, 387. 

SUPREMACY, ABSOLUTE. Claim of, for the 
general government, 12-14,295-297 et seq. 

[See “ Absolute Supremacy.”] 

SUPREME COURT, U. S. Declare there was a 
change from a confederacy to another sys¬ 
tem, 160,167, 385. 

On questions not provided for in the Consti¬ 
tution, 275, 358, 359. 

The government that of the people, 295, 296. 

“ Dominion,” “ submission,” etc., dicta , 296, 
300,368. 

The federal agency is “ a government of the 
States in their political capacity,” 300. 

The political community, 296, 338, 339. 

Government determines the scope of its pow- 
' ers, 300, 368. 

Its creation and jurisdiction, 386. 


SUPREME COURT, U. S. — continued. 

Suits against States before : the 11th amend¬ 
ment, 386,387. 

“SUPREME LAW.” The “ School’s ” extrava¬ 
gant contention, 53. 

Only by the sovereign wills of States was the 
Constitution made the, 32, 64, 77, 120, 172, 
337, 342 et seq. 

Perversion of the, clause, 53,142, 143, 176. 

In what sense the Constitution is the, 176, 
177. 

How the fathers regarded it, 177, 178. 

The clause simply the enunciation of a prin¬ 
ciple of international agreements, 178. 

Absurdity of the consolidationists’ claim, id. 

Right to subjugate under, id., 215. 

SYSTEM, OUR POLITICAL. One of checks 
and balances, 13,363. 

Change by usurpation, 13, 19, 58, 334. 

Original charges against, made “expound¬ 
ings,” 16, 53, 159-161. 

As modified by the war of secession, 25, 27. 

Testimony of the writers of the Federalist as 
to, 42, 43, 178, 179, 185-187, 239-241. 

The inquiry is one of facts, 42, 50, 51, 166, 
274 et seq. 

An expanding autonomy: provides for “ in¬ 
crease by new associations,” 347, 348. 

As the fathers viewed it, 45-48, 308, 309, 367, 
368. 

Character fixed from the beginning, 41, 42 et 
seq., 141. 

Exposition, 74, 75, 136, 137, 140 et seq. 

States the be-all and end-all of, 75, 148, 149, 
150, 155, 156, 325. 

“ A federation,” “ confederated republic,” or 
“republic of republics,” 75, 76, 136, 137, 
140, 141,145, 202, 280, 300, 301. 

States accede to, 204-207. 

The only acts giving existence to, 136, 137, 
140, 296, 297, 357, 358. 

True presentation of [Chart], 140, 144,145. 

Was a fact before the government existed, 
368,369. 

Tripartite character of the government in, 
144, 145 [ Chart], 362 [Diagram]. 

Identity of our present, with the confedera¬ 
tion, 144-146. 

States remain the sovereigns of, 153,169,199. 

According to the Constitution, 147, 154, 155. 

Politicians have set up a false, 162, 173,174. 

Chief Justice Parsons’s characterization of, 
194. 

Every “national” word and idea excluded 
from our federal, 200, 201. 

Not changed by the war, 274. 

Ratibnale of, 349 and note : 361 note. 

As contemplated [Diagram], 297. 

According to James Wilson, 303. 

Rulers in, are “substitutes,” agents, “ sub¬ 
jects,” etc., 310, 312. 

What was assumed of the States in the de¬ 
vising of, 355. 

A definite conception of, 362. 

Grades and impartations of authority in, 294, 
295, 301,302, 365, 366. 

What the, was in 1789, 369. 

Not changed from federation, 385. 

Key-note of, 433. 

Growth and development theory of, delusive 
and pernicious, 141, 266, 267. 

T. 

TIIACHER, MR. States sovereign in the 
Union, 82. 

TOCQUEVILLE, DE. On the union of the 
States, 332. 





604 


INDEX. 


TRAITORS. The confederates neither rebels 
nor, 28-30. 

Davis and Lee not, 36-40, 402. 

Who were, if any, 40, 155. 

TREASON. Is against the State or States, 30, 
339, 394, 410, 413, 424 et seq. 

Coercion of States by the general Govern¬ 
ment is, id., 31, 384. 

Exposition of, clause in the federal Consti¬ 
tution, 29, 30, 413 et seq. 

Claim of “absolute supremacy ” is, 155, 351. 

State defence by the citizen not, 373, 394, 
396, 409, 410. 

Vitally important corollaries, 394. 

Is involved in federal usurpation, 361, 376. 

Clause in the State Constitutions, 400, 401. 

Mr. Curtis’s perversion of the treason clause, 
413. 

Only purpose of the treason clause, 414. 

The State has the original right to punish, id. 

As provided for in the.State and federal Con¬ 
stitutions, 414. 

The general Government cannot be the object 
of, 414, 415. 

The end of argument, 415. 

Federal jurisdiction of, derived from the 
State, 414, 415. 

Against the United States is a violation of 
allegiance to the State or States, 415, 424. 

Testimony of Virginia, 415, 416 ; of Massa¬ 
chusetts, 417, 418. 

Conclusive proof from Vermont and Ken¬ 
tucky, 418, 419. 

Summary as to, citizenship and allegiance, 
the early faith, 419, 420. 

Bases of the conclusions as to, citizenship 
and allegiance, 421. 

Is against society, 421, 422. 

Disunion ends, 422. 

The State makes and unmakes the offence, 
423. 

A necessary condition of the offence as 
against the United States, 424. 

The power that laid the, clause on her citi¬ 
zens in 1788, could annul it in 1861, id. 

TUCKER, ST. GEORGE. On secession, 32, 33. 

• 

u. 

ULTIMATE ARBITER. The State on all that 
touches her existence, integrity, and sove¬ 
reignty is, 355 et seq., 358, 359. 

Wherein and in what capacity the federal 
agency may act as, 355 , 356. 

Constitutional exposition in the light of po¬ 
litical philosophy and facts, 357, 358. 

UNION. A federation of sovereign States, 42 
et seq., 48, 127, 136, 140, 144, 145, 147,155, 
156, 184. 

Involves the idea of competent States, 46. 

Is a voluntary association of sovereign States, 
46, 67, 76, 77,140, 141, 145, 156, 328, 330, 
331, 358. 

And liberty, 68, 220. 

Motives of establishing the, 73,136, 196, 197 
et seq. 

Chief aim of, 75, 76, 152, 355. 

The “more perfect Union ” of 1788, 76, 144, 
145, 146. 

Consolidation of the, 80, 81, 109,110. 

And the confederation — identity of charac¬ 
ter, 144, 145 [Illustration]. 

The constituents of both the same, 145. 

They were both federal Unions, id., 201, 202. 

When came in voluntariness to make it indis¬ 
soluble, 142, 145, 286, 358, 376. 

Shows a complete federation, 145. 

Necessarily voluntary, 156, 221, 415. 


UNION — continued. 

An indissoluble, degrades States to provinces, 
155, 219, 358. 

Founded solely on amity, mutual interests, 
and safety, 66, 67, 156, 384. 

Reasons for making the new, 196, 197. 

Our duty towards the true, 220. 

Purport of the plan of, according to the fed¬ 
eral convention, 198, 199. 

The “ national ” idea excluded, 200 et seq. 

The convention submitted their scheme as a 
federal plan of, 202. 

The States “ acceded ” to, 204-207. 

Involuntariness of, and war, 233-235. 

The perverters’ corporate sovereignty, 12,13, 
58, 219. 

Object of, was government, not forming so¬ 
ciety, 284, 288. 

Must be voluntary [Seward], 331. 

What the general government first assumes, 
and thence concludes regarding, 360. 

What it is not, 382. 

A coercive, provides for its own destruction, 
383. 

Inter-State faith the sole basis, 415. 

Plain common sense as to, 220, 221, 430. 

UNION-WORSHIP. Fanatic devotion instead 
of obedience, 35, 36, 219, 220. 

The underlying motives, 220. 

“ UNITED STATES.” What the phrase meant, 
147,148,170, 176. 

It disposes of the expounders’ “ nation,” 179. 

Why they avoid the phrase, 220. 

“ UNITY OF GOVERNMENT.” What Wash¬ 
ington meant by the phrase, 362. 

Apprehensions and precautions of the fath¬ 
ers, 363. 

No “unity of government” as assumed, in 
our system, id. 

USURPATION. A change by, threatens, 334. 

Federal, is involved in claim of absolute su¬ 
premacy, 155. 

Government control of the political people, 
361. 

Federal, to be resisted, 373, 380 et seq. 

Tendency and end of federal, 376. 

An act of, is not law, 380, 391. 

State governments a check upon federal, 391. 

y. 

VARNUM, COL. The States to confederate, 
81. 

VATTEL. Jus gentium as to our inter-State 
or civil war, 39. 

The nation or State, 65, 279. 

Obligations of the social compact, 284. 

The confederacy of sovereign States, 298,347. 

Sovereignty, 306. 

The American federal republic, 332. 

VIRGINIA. Federalizes herself, 107, 415, 416. 

Vote on ratification. Date, 107. 

The ratifying convention, high character of 
its personnel , id. 

Substance of the charges of Henry, Mason, 
and others, against the proposed federal 
plan, id. 

Replies of Pendleton, Madison, Marshall, etc., 
107-109. 

“Consolidation” variously apprehended, 
109, 110. 

A consolidated government inadmissible, 110. 

Mode of ratification disproves the charge, 

id. 

Ratifies as a sovereign State for herself, 111, 
112, 415. 

Enacting words of her ordinance, 111, 112. 

Distortions of the perverters, 112, 113. 







INDEX. 


605 


TIRGINIA — continued. 

Demands the amendments to the federal 
Constitution, 112. 

Declares government functionaries trustees 
and agents, 112,113. 

Asserts in her ratification that delegated 
powers may be resumed, id ., 389. 

And Massachusetts: a parallel and a con¬ 
trast, 113,114. 

Asserts lordship of the soil, 62. 

Terms of cession of federal sites, 63, 344. 

Testimony as to citizenship, allegiance, and 
treason, 415, 416. 

w. 

WAR, THE. Neither the facts of our political 
history nor the principles of our polity 
altered by, 274. 

WASHINGTON. Power always in the people, 
11, 227. 

Representatives our creatures and servants, 
11, 227. 

The ties of Union, 66, 67, 234, 235. 

Powers in the federal government an ‘ ‘ exten¬ 
sive trust,” 75, 223, 224. 

The consolidation of the Union, 110,223,224. 

Vs. Webster, 132, 133. 

On the accession of Rhode Island, 134. 

Responsibility of representatives, 227. 

The Constitution a “compact or treaty,” 
206, 226, 230. 

States “ acceded ” to the Union, 206, 207. 

The Union a “ new confederacy,” 207, 229, 
230. 

Against the “expounders,” 222, 223. 

Training and associates contrasted with Lin¬ 
coln’s, 222. 

Was a State sovereignty man, id. 

Extracts from his writings, 223 et seq. 

On the new frame of government, 223-226, 
227-229. 

Was the substitution of one form of federal 
government for another, 225. 

The necessity for Union, 227. 

States ratify or reject, 228. 

Powers in the general government, id. 

A bill of rights nugatory, 229. 

Solicitude for the accession of the States, 227, 
229, 230. 

“ A confederated government ” under the 
new compact, 230. 

Constitutional views expressed while in the 
presidency, 231 et seq. 

The States and the Union, 231, 232, 233, 234. 

Growing sectionalism, 232, 233. 

“ Constitutional limitations ” and the policy of 
the government, 233. 

Extracts from his Farewell Address, with 
exposition, 234-237. 

Unity of government, 235, 362. 

The Union and the government, 235,236, 237. 

Approval of Wilson’s defence of the Consti¬ 
tution, 237, 238. 

Indorses Dickinson’s views of the new sys¬ 
tem, 238, 239. 

Commends the papers on the Federalist, 239. 

Summary of his views, 241. 

4 ‘ WE, THE PEOPLE.” Of the United States 
means “ several and separate sovereignties 
joining in a confederacy,” 45, 53, 147,148, 
168, 201. 

Means the people as organized bodies politic, 
66, 82, 83. 

Means Massachusetts, 82; means Connecti¬ 
cut, 90 ; New York, 95 ; New Jersey, 98 ; 
Pennsylvania, 102, 103; Delaware, 104; 
Maryland, 105, 106, Virginia, 111; South 


“ WE, THE PEOPLE ” — continued. 

Carolina, 119, 120; Georgia, 121; New 
Hampshire, 123; North Carolina, 132 ; 
Rhode Island, 134. 

What the phrase meant according to Gouver- 
neur Morris, 45; Tench Coxe, 46 ; Dr. 
Charles Jarvis, 83; Samuel Stillman, 84; 
Charles Turner, id. ; Theophilus Parsons, 
id. ; John Hancock, 85; Madison, 108. 

WEBSTER, DANIEL. THe people erect what 
government they please, 11, 374. 

With us all power is in the people, 11, 273, 
359. 

Sovereignty of government unknown in 
North America, 11, 273, 374. 

The Constitution made a nation, 52, 290, 368. 

The Constitution controls State sovereignty, 
42, 52,160, 201. 

Authority of final decision in questions of 
disputed power, 19, 52,160, 293. 

A “ change from a confederacy,” etc., 42, 
152, 160,186, 385. 

The dogmas he taught in 1830-1833, 42, 53, 
160,161, 211. 

The people as a nation ordained the Consti¬ 
tution, id., id., 171. 

The “ people distributed their powers,” etc., 
42, 52, 132. 

As the politician and the advocate, 52, 207, 

211 , 212 . 

The Constitution's hold on the individual 
conscience and individual duty, 59, 376, 
381. 

The Union rests on compact and plighted 
faith, 52, 59, 209, 210. 

The only parties to the Constitution the thir¬ 
teen confederated States, 59, 209, 331. 

Fallacy of a new social compact, 64, 65, 288, 
289. 

The sources of authority he avoids, 87, 88. 

And the ratification of New Hampshire, 124. 

The distribution of powers dogma at fault, 
132,133. 

Washington vs ., id. 

Unwitting admissions, 137, 358, 359. 

Comparison of his dogmas with the original 
charges, 160,161. 

“ Body of public convictions,” 165,166. 

Deplorable results of the “ convictions,” 165, 
215. 

Ignores the States’ action on the Constitu¬ 
tion, 170. 

On the supreme law, 160, 161, 176. 

Garbles the ratifications, 182 et seq. 

Incorrect and deceptive use of authorities, 
e. g., “ the Federalist,” 185, 186. 

His own authorities confound him, 186,187. 

Garbles the records of the convention, 197- 

201 . 

His criticism of “compact” and “accede,” 
204 et seq. 

Constitutional history and the fathers against 
him, 205-207. 

The States parties to a constitutional com¬ 
pact, 208. 

His views late in life, 207, 208. 

The compact equally binding on all, 208. 

His real views, 209-211. 

Probable explanation of his inconsistent ut¬ 
terances, 211, 212. 

On “ adroit [verbal] substitution,” 242. 

Scope of the Constitution, and resort to the 
jus gentium , 275, 358, 359. 

The States are confederated, 208, 209, 286. 

The Constitution the only bond of Union, 
207, 208. 

Inconsistencies of his views in 1830-1833, 
279. 



/ 


606 


INDEX. 


Z 2 7 7 /S~ 



CM• CL 


WEBSTER, DANIEL — continued. 

Qualified State sovereignty, 307, 314. 

The letter to Baring Brothers, 314- 
His only difference from Lincoln, 315. 

Logic of his views in 1833, 315, 316. 

Rule of verbal interpretation, 253, 254, 323. 
What he could not have uelieved, 217. 

Our Union “ the American confederacy,” 
209, 330. 

The States have “ exclusive possession of 
sovereignty,” id., id. 

The States never thought “to consolidate 
themselves into one government,” 210, 331. 
Original idea of the Union, id., id. 

Until ratified, the Constitution was but a 
proposal, 137, 210. 

WEBSTER, NOAH. Perverters’ “ adroit sub¬ 
stitutions ” in dictionary of, 242 et seq. 

A centralizing propaganda, id. 

Its aim to produce a desired usage and ‘ ‘ pub¬ 
lic convictions,” 242, 243. 

Character and political views of, 243, 244. 
Relation of the citizen to the body politic, 

244. 

The sovereign power, bill of rights not neces¬ 
sary, States sovereign in the Union, 244, 

245. 

No right to make perpetual Constitutions, 
244. 

No coercion of States, 383. 

The Union is to preserve the States, 244, 245. 
Federal officials agents of the States, 245. 

The new Constitution a league, 245, 246. 

The counterfeit definitions of, paralleled with 
the originals, 246-251. 


WEBSTER, N0AH — continued. 

A summary of his political teachings, 252. 

The shameful desecration of his great achieve¬ 
ment, 252, 253. 

High value of contemporaneous exposition, 
253, 254. 

WILSON, JAMES. The absolute sovereignty 
never goes from the people, 11, 101, 359, 
374. 

Statement of the character of the Union, 45, 

102 . 

The States independent sovereignties, 45, 

102 . 

The system proposed bv the federal conven¬ 
tion, 45 , 46, 102 , 237,'238. 

A bill of rights superfluous, 237. 

A confederacy of sovereignties, 101, 102. 

The general government a federal body of 
our own creation, 45, 103, 237. 

His views indorsed by Washington, 237. - 

Our American polity —exposition, 303, 304. 

An incontrovertible American doctrine, 329, 
390. 

The people ordain and establish — they can 
repeal and annul, 390, 391. 

Constitutions dispense powers for public wr’- 
fare, 390. 

WOLCOTT, OLIVER. The States are the- 
members of the Union, 90. 

The pillars that uphold the system, id. 

WORDS. How well-known, must be taken, 
253, 254, 323. 

“ Expounders,” juggling with, 242, 243. 

Arguing from false, 317. 

“ Expounding,” 364. 



































































































































































































































































































































































































































